Telangana High Court
K. Shoba vs The District Collector Panchayar ... on 18 October, 2021
Bench: K.Lakshman
1
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ WRIT PETITION Nos. 22616, 22640 AND 22668 OF 2021
% Delivered on: 18-10-2021
W.P.No.22616 OF 2021
Between:
# K.Shoba and others .. Petitioners
W.P.No.22640 OF 2021
A.Krishna ...Petitioner
W.P.No.22668 OF 2021
Md.Fayeem ...Petitioner
Vs.
WRIT PETITION Nos. 22616, 22640 AND 22668 OF 2021
$ The District Collector (Panchayat Raj Wing)
Government of Telangana,
Sanga Reddy District at Sanga Reddy
and others. .. Respondents
! For Petitioners : Sri Vedula Venkataramana,
Lr.Sr.Counsel representing.
Mr.D.B.Chaitanya,Lr.Counsel
^ For Respondent Nos.1,3 and 4 : Lr.Govt.Pleader for Panchayat Raj
For Respondent No.2 : Mr.G.Narender Reddy,
Lr.Standing Counsel
For Respondent No.5 : Mr. P.Venugopal,
Lr.Sr.Counsel rep.
Mr.T.Sudhakar Reddy,Lr.Counsel
< Gist
:
> Head Note
:
? Cases Referred :
1. AIR 2000 AP 91
2.
1987(1) SCC 424
3.
(1992) 4 SCC 711
4.
(2008) 4 SCC 144
5.
AIR 1967 SC 295
6.
(2005) 7 SCC 627.
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
WRIT PETITION NOs.22616, 22640 AND 22668 OF 2021
COMMON ORDER:
1-a) W.P.No.22616 OF 2021 is filed by the Petitioners/Ward
Members of the 2nd Respondent to quash the show cause notice No
153/2021/Pts.1 to 6, dated 06.09.2021 issued by the 1st Respondent with
regard to suspension of the Petitioners and to issue consequential direction
to the Respondents to permit the Petitioners to continue as Ward Members
till January 2024.
1-b) W.P.No.22640 of 2021 is filed by the Petitioner/Sarpanch to
quash the show cause notice No.153/2021/A1/Pts.1, dated 06.09.2021
issued by the 1st Respondent with regard to removal of the Petitioner from
the office of Sarpanch of the 2nd Respondent Gram Panchayat and issue
consequential direction to the respondents to permit the Petitioner to
continue as Sarpanch for the elected tenure.
1-c) W.P.No.22668 of 2021 is filed by the Petitioner/Upa-Sarpanch
seeking to quash the show cause notice No.153/2021/A1/Pts.2, dated
06.09.2021 issued by the 1st Respondent with regard to suspension of the
Petitioner from the office of Upa-Sarpanch of the 2nd Respondent Gram
Panchayat and issue consequential direction to the respondents to permit
the petitioner to continue as Upa-Sarpanch of the 2nd respondent Gram
Panchayat for the elected tenure.
2. Heard Sri Vedula Venkataramana, learned Senior Counsel
representing Sri D.B.Chaitanya, learned counsel for the Petitioners, learned
Government Pleader for Panchayat Raj appearing for Respondent Nos.1, 3
and 4 and Sri P.Venugopal, learned Senior Counsel, representing Sri
T.Sudhakar Reddy, learned counsel appearing for the 5th Respondent and
Sri G.Narender Reddy, learned Standing Counsel appearing for the 2nd
Respondent and perused the record.
3. FACTS OF THE CASE
i) The 1st Respondent had issued impugned notices dated 06.09.2021
to the Sarpanch, Upa-Sarpanch and the Ward Members, the respective
petitioners herein asking them to show cause as to why action should not be
initiated against them in violation of Sections 113, 114 and 37(1) and 37(5)
of the Telangana Panchayat Raj Act 2018 (for short, 'the Act')Act. 7 days
time was given to them to submit their explanations.
ii) The charges leveled against the Sarpanch are as follows:-
"Charge No.1:-As per CCTV footage, video & audio footage, it is
observed that, the Sarpanch has distributed Rs.50,000/-(Rupees Fifty Thousad
Only) to each ward member in between 12.30P.M. to 12.34PM on
25.03.2021. The distribution of amount among body members in the Gram
Panchayat Office shows their illegal and corrupt practices.
Charge No.2: After assuming the charge as Sarpanch, 12 Unauthorised
Layouts have been established in Kistareddypet of Ameenpur, the Sarpanch
has failed to stop these layouts and violated the Section 113 of the Act.
Charge No.3: After assuming charge as Sarpanch, Gram Pandhayat
Kistareddypet, 62 Unauthorised buildings are being constructed; the Sarpanch
has failed to stop these constructions and violated the Section 114 of the Act.
Charge No.4: Some of the Buildings are demolished in the April, 2021 as
special drive, started again. Even after several times demolition drive taken
up to remove illegal floors, construction of illegal floors are still going on i.e.
they took permission for G+2 from Gram Panchayat and constructing G+3,
G+4. This shows Gram Panchayat body failed to stop the illegal constructions
as per Section 114 of the Act.
Charge No.5: A.Krishna, Sarpanch, Gram Panchayat, Kistareddypet, has not
cooperated with the Panchayat Secretary and Gram Panchayat Staff to stop
the illegal structure and obstructed the duties of them."
iii) The charges leveled against the Upa-Sarpanch are as
follows:-
"Charge No.1:-As per CCTV footage, video & audio footage, it is
observed that the Sarpanch has distributed Rs.50,000/-(Rupees Fifty Thousad
Only) to each ward member in between 12.30P.M. to 12.34PM on
25.03.2021. The distribution of amount among body members in the Gram
Panchayat Office shows their illegal and corrupt practices.
Charge No.2: Some of the Buildings are demolished in the April, 2021 as
special drive started again. Even after several times demolition drive taken up
to remove illegal floors. Construction of illegal floors are still going on i.e.
they took permission for G+2 from Gram Panchayat and constructing G+3,
G+4. This shows Gram Panchayat body failed to stop the illegal constructions
as per Section 114 of the Act.
Charge No.3: After assuming charge of Upa-Sarpanch, 12 Unauthorised
Layouts have been established in the Gram Panchayat, Kistareddypet of
Ameenpur. The Upa Sarpanch has failed to stop these layouts and violated
the Section 113 of the Act.
Charge No.4: After assuming the charge of the Upa-Sarpanch, Gram
Panchayat Kistareddypet, 62 unauthorized buildings are being constructed;
the Upa-Sarpanch has failed to stop these constructions and violated the
Section 114 of the Act.
Charge No.5: Sri Md.Fayeem, Upa Sarpanch, Gram Panchayat,
Kistareddypet, has not cooperated with the Panchayat Secretary and Gram
Panchayat Staff to stop the illegal structure and obstructed the duties of
them."
iv) The Charges leveled against the Ward Members are as
follows:-
"Charge No.1:-As per CCTV footage, video & audio footage, it is
observed that the Sarpanch has distributed Rs.50,000/-(Rupees Fifty Thousad
Only) to each ward member in between 12.30P.M. to 12.34PM on
25.03.2021. The distribution of amount among body members in the Gram
Panchayat Office shows their illegal and corrupt practices.
Charge No.2: Some of the Buildings are demolished in the April, 2021 as
special drive started again. Even after several times demolition drive taken up
to remove illegal floors. Construction of illegal floors are still going on i.e.
they took permission for G+2 from Gram Panchayat and constructing G+3,
G+4. This shows Gram Panchayat body failed to stop the illegal constructions
as per Section 114 of the Act.
4. CONTENTIONS OF THE PETITIONERS
i) The 1st Respondent has no jurisdiction to issue impugned show
cause notices to the Upa-Sarpanch and the Ward Members as per Section
37(5) of the Act.
ii) In respect of Upa-Sarpanch, there is procedure to move No
Confidence Motion in the event of losing of confidence on him.
iii) Section 30 of the Act, deals with the procedure for moving No
Confidence Motion, whereas, the 1st Respondent cannot invoke jurisdiction
under Section 37(1) of the Act, by way of issuing the impugned notices.
Therefore, the 1st Respondent is not having jurisdiction to issue impugned
notices and as such the issuance of the said impugned notices, dated
06.09.2021 issued in respect of the Upa-Sarpanch and the Ward Members
have to be set aside.
iv) With regard to the Sarpanch, the 1st Respondent without forming
any opinion and without coming to independent satisfaction, issued the
impugned show cause notice, dated 06.09.2021.
v) The 1st Respondent has also referred the report of the 3rd
Respondent in the said show cause notice, dated 06.09.2021. Basing on the
report of the 3rd Respondent, the 1st Respondent cannot issue show cause
notice.
vi) The 1st Respondent has to form an independent opinion for the
purpose of issuing the notice under Section 37(5) of the Act.
vii) The 1st Respondent has to come a conclusion with regard to
abusing of position or powers vested on the Petitioner as Sarpanch of the
village and that his continuation in office would be detrimental to the
interest of the concern Gram Panchayat or the inhabitants of the Village.
Without coming to such conclusion, the 1st Respondent has issued the
impugned show cause notice. Therefore, the impugned show cause notice
is liable to be set aside.
viii) Placed reliance on the principle laid down by the then High
Court of Andhra Pradesh in D. Sathi Reddy Vs.Commissioner,
Panchayat Raj A.P., Hyd.1
ix) With the said submissions, learned Senior Counsel sought to set
aside the impugned notices issued to the Petitioners in all the Writ
Petitions.
AIR 2000 AP 91
5. CONTENTIONS OF RESPONDENT NOs.1, 3 AND 4
i) As per Section 2(39) and Section 15 of the Act, the Sarpanch
includes Upa -Sarpanch. Therefore, the 1st Respondent is having power to
issue show cause notice in respect of Upa-Sarpanch and also Ward
Members. Section 2(39) defines Sarpanch as a person elected as a
Sarpanch under Section 15. Section 15(1) to 15(8) discusses the procedure
of elections and the qualifications for contesting. Section 15(9) and Section
15(10) provide for the election of Upa- Sarpanch. Nowhere in the provision
it is stated that Sarpanch includes Upa - Sarpach.
ii) The Petitioners herein, instead of submitting explanations to the
show cause notices, filed the present Writ Petitions. There is procedure laid
down under the Act, to challenge the order to be passed by the 1st
Respondent pursuant to the show cause notices. Instead of availing the said
alternative remedy, the Petitioners have filed the present Writ Petitions.
iii) The 1st Respondent, basing on the contents of the complaints
submitted by the Ward Members and villagers of the said village and on the
report submitted by the 3rd Respondent, formed an opinion in issuing the
impugned show cause notices to the petitioners herein.
iv) There are serious allegations against all the Petitioners.
v) The contention of the petitioners, Surpanch, Upa-Sarpanch and
Ward Members of the 2nd Respondent-Gram Panchayat, would be
detrimental to the interest of the 2nd Respondent and inhabitants of the said
village. Therefore, the 1st Respondent had issued the impugned show cause
notices to all the Petitioners.
vi) There is no irregularity or illegality in issuance of the impugned
notices to the Petitioners.
vii) Writ Petitions are not maintainable challenging the show cause
notices.
viii) With the said submissions, learned Government Pleader sought
to dismiss all the three Writ Petitions.
6. CONTENTIONS OF THE 5TH RESPONDENT
i) The villagers of the 2nd Respondent-Gram Panchayat submits that
there are serious allegations against all the Petitioners herein.
ii) On the complaint lodged by the 5th Respondent, the 1st
Respondent has called for report from the 3rd Respondent, who in turn,
submitted his report dated 30.08.2021. Therefore, the 1st Respondent has
issued show cause notices to the Petitioners herein.
iii) Instead of submitting explanations to the said show cause notices,
the Petitioners have filed the present Writ Petitions.
iv) There is procedure laid down under the Act with regard to
passing of orders pursuant to the impugned show cause notices and filing
of an appeal under Section 37(6) of the Act.
v) Instead of submitting their explanations to the impugned show
cause notices, the Petitioners herein have filed the present Writ Petitions.
vi) With the said submissions, he sought to dismiss the writ
Petitions.
FINDING OF THE COURT
7. In view of the above said submissions, the point that falls for
consideration before this Court is whether the 1st Respondent is having
power to issue the show cause notices under Section 37(5) of the Act to
Sarpanch, Upa-Sarpanch and Ward Members.
8. To decide the said lis, it is apt to refer certain provisions of the Act
which are relevant. Section 2 (39) of the Act deals with the definition of
Sarpanch which is as follows:
'Sarpanch' means the Sarpanch of Gram Panchayat, elected
under Section 15.
9. Section 15(1) to (8) of the Act deals with the procedure for
election of Sarpanch and Section 15(9) and (10) of the Act for Upa -
Sarpanch.
15. Election and term of office of Sarpanch or Upa Sarpanch.
(1) There shall be a Sarpanch for every Gram Panchayat, who
shall be elected in the prescribed manner by the persons whose
names appear in the electoral roll for the Gram Panchayat, from
among themselves. A person shall not be qualified to stand for
election as Sarpanch, unless he is at least twenty-one years of age:
Provided that a Member of the Legislative Assembly of
the State or a Member of the Legislative Council of the State or of
either House of Parliament who is elected to the office of
Sarpanch or Upa-Sarpanch shall cease to hold such office unless
within one month from the date of election to such office he
ceases to be a Member of the Legislative Assembly of the State or
a Member of the Legislative Council of the State or of either
House of Parliament by resignation or otherwise.
(2) The election of the Sarpanch may be held at the same time and
in the same place as the ordinary elections of the members of the
Gram Panchayat.
3) ..........
4)..........
5)..........
6)..........
7)..........
8)..........
(9) For every Gram Panchayat one of the members shall be
elected to be Upa-Sarpanch by the Gram Panchayat,in the
prescribed manner. If at an election held for the purpose, no
Upa-Sarpanch is elected, fresh election shall be held:
Provided that before an election of Upa-Sarpanch is
held, every casual vacancy in the office of an elected
member of a Gram Panchayat shall be filled.
10)..........
10. The procedure laid down under Section 37(6) of the Act with
regard to passing of orders pursuant to the impugned show cause notices
and filing of an appeal, which is as follows:-
(6) Any Sarpanch aggrieved by an order of removal passed
by the District Collector under Sub-Section(1), or by an intimation
under sub-section (2) may, within thirty days from the date receipt
of the order or as the case may be the intimation, prefer an appeal
to the Gram Panchayat Tribunal.
11. It is relevant to note that the election of Sarpanch and Ward
Members of Gram Panchayat is a direct election and election to the Upa
Sarpanch is indirect election. Against Upa Sarpanch, there is procedure to
move No Confidence Motion. The Procedure is specified under Section 30
of the Act, which reads as follows:-
Section 30: Motion of no confidence in Upa-Sarpanch:-
30. (1) A motion expressing want of confidence in the Upa-Sarpanch,
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 the Gram
Panchayat, 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 Upa-
Sarpanch:
Provided further that no such notice shall be made against the
same Upa-Sarpanch more than twice during his term of office and the
second no-confidence motion shall not be initiated before the expiry of
two years from the date of first no-confidence motion. Motion of no-
confidence in Upa-Sarpanch.
Explanation:- For the removal of doubt, it is hereby
declared that for the purpose of this section the expression
―total number of membersǁ means, all the members who are
entitled to vote 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 at least one half of
the total number of members, the District Collector
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 purpose of this section, in the
determination of one half 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.
12. It is relevant to note that Section 32 of the Act, deals with the
duties and responsibilities of the Sarpanch which reads as follows:-
32. (1) The Sarpanch shall,-
(a) exercise all the powers and perform all the
functions specifically conferred or imposed on the Sarpanch by this Act
or the rules made thereunder;
(b) exercise administrative control over the Panchayat Secretary
and supervise his work for the purpose of implementation of the
resolutions of the Gram Panchayat or any committee thereof;
(c) incur contingent expenditure up to such limit as
may be fixed by the Government from time to time and authorize
payment and refunds with the approval of Gram Panchayat;
(d) act only within the terms of sanction given in any resolution
of the Gram Panchayat;
(e) maintain sanitation in the village;
(f) take up plantation and maintain Green coverage in the village;
(g) for the purpose of effective functioning of the Gram
Panchayat, the Sarpanch shall reside in the village and visit the Gram
Panchayat office regularly.
(2) Failure of Sarpanch in performing the duties prescribed in
sub-section (1) shall result in removal of the Sarpanch by the District
Collector after providing him due opportunity for explanation.
The Upa Sarpanch is second/Joint Signatory to the cheques of Gram
Panchayat. The Upa Sarpanch does not have any independent power to act
on behalf of the Gram Panchayat.
13. As per Section 70(4) of the Act, all cheques against the Gram
Panchayat fund shall be signed jointly by the Sarpanch and Upa Sarpanch.
All orders related to the above will be issued by the Sarpanch on behalf of
the Gram Panchayat.
14. Section 37(5) of the Act deals with the powers of the District
Collector, to remove Sarpanch and intimating deemed removal, which is
extracted as follows:-
"(5) If the District Collector is of the opinion that a
Sarpanch of a Gram Panchayat omitted or refused to carry out the
orders of Government for the proper working of the concerned
Gram panchayat or abused his position or the powers vested in
him, and that the further continuance of such person in office
would be detrimental to the interests of the concerned Gram
Panchayat or the inhabitants of the village, the District Collector,
by order, suspend such Sarpanch from the office for a period not
exceeding six months, pending investigation into the said charges
and action thereon under the foregoing provisions of this Section;
Provided that no order under this sub-section shall be
passed unless the person concerned has had an
opportunity of making a representation against the action
proposed:
Provided further that it shall be competent for the
Commissioner to extend, from time to time, the period of
suspension for such further period not exceeding six
months, so however that total period of suspension shall not
exceed twelve months:
Provided also that a person suspended under this sub-
section shall not be entitled to exercise the powers and
perform the functions attached to his office and shall not be
entitled to attend the meetings of the concerned Gram
Panchayat except a meeting held for the consideration of a
no-confidence motion."
15. A perusal of the impugned show cause notices issued to the
petitioners herein would reveal that on the complaints lodged by the 5th
Respondent and the villagers of the 2nd Respondent-Gram Panchayat, the 1st
Respondent had called for report from 3rd Respondent who in turn
submitted his report. Basing on the said complaints and report of the 3rd
Respondent, the 1st Respondent formed an opinion and issued impugned
show cause notices to the Petitioners herein.
16. As stated above, there is no provision under the Act to issue
show cause notices to the Upa Sarpanch and Ward Members of Gram
Panchayat. Section 37 of the Act deals with the removal of the only
Sarpanch but not with regard to removal of Upa Sarpanch and Ward
Members. As stated above, the election of Upa Sarpanch is indirect election
and there is procedure for removal. Though, prima facie, there are serious
allegations against the Upa Sarpanch and Ward Members, there is no
procedure prescribed under the Act, to remove them from the post of Upa
Sarpanch and Ward Members by the 1st Respondent by way of initiating
procedure. At the cost of repetition, as discussed supra, Section 37 of the
Act deals with the removal of the Sarpanch only.
17. Learned Government Pleader, referring to Section 2(39) and
Section 15 of the Act, would submit that Sarpanch includes Upa Sarpanch.
But Section 15 of the Act deals with the election of Sarpanch and Upa
Sarpanch. As discussed supra, Section 15(1) to (8) deals with election of
Sarpanch and Section 15(9) and (10) deals with the election of Upa
Sarpanch. Thus, the Act is silent with regard to removal of Upa Sarpanch
and Ward Members by the 1st Respondent. If the Ward Members lost
confidence on the Upa Sarpanch, they have to move No Confidence
Motion under Section 30 of the Act whereas, in the present case, on the
complaint given by the 5th Respondent and villagers of the 2nd Respondent,
the 1st Respondent has issued the present impugned show cause notices.
18.In Reserve Bank of India Vs. Peerless General Finance and
Investment Company Limited2, it was held by the Apex Court that
interpretation must depend on the text and context. They are the bases of
interpretation. One may well say if the text is texture, context is what gives
the colour. Neither can be granted. Both are important. That interpretation
is best which makes the textual interpretation match the contextual. A
statute is best interpreted when we know why it was enacted. With this
knowledge, the statute must be read, first as a whole and then section by
section, clause by clause, phrase by phrase and word by word. If a statute is
looked at, in the context of its enactment, with the glasses of the statute
maker, provided by such context, its scheme, the sections, clauses, phrases
and words may take colour and appear different than when the statute is
looked at without the glasses provided by the context. With these glasses
we must look at the Act as a whole and discover what each section, each
clause, each phrase and each word is meant and designed to say as to fit
into the scheme of the entire Act. No part of a statute and no word of a
1987(1) SCC 424
statute can be construed in isolation. Statutes have to be construed so that
every word has a place and everything is in its place.
19. The Hon'ble Apex Court in Nelson Motis v. Union of India3
held as follows :-
8. The language of sub-rule (4) of Rule 10 is
absolutely clear and does not permit any artificial
rule of interpretation to be applied. It is well
established that if the words of a statute are clear
and free from any vagueness and are, therefore,
reasonably susceptible to only one meaning, it
must be construed by giving effect to that
meaning, irrespective of consequences. The
language of the sub-rule here is precise and
unambiguous and, therefore, has to be understood
in the natural and ordinary sense. As was observed
in innumerable cases in India and in England, the
expression used in the statute alone declares the
intent of the legislature. In the words used by this
Court in State of U.P. v. Dr Vijay Anand
Maharaj [(1963) 1 SCR 1 : AIR 1963 SC 946 : 45
ITR 414] when the language is plain and
unambiguous and admits of only one meaning, no
question of construction of a statute arises, for the
act speaks for itself. Reference was also made in
the reported judgment to Maxwell stating:
"The construction must not, of course, be strained
to include cases plainly omitted from the natural
meaning of the words."
Therefore, as the language of Section 37(5) is clear, the contention of
learned Government Pleader that Sarpanch includes Upa - Sarpanch is not
sustainable. The impugned show cause notices issued against the Ward
Members and Upa - Sarpanch were issued without jurisdiction and are
liable to be set aside.
(1992) 4 SCC 711
20. With regard to Sarpanch, it is relevant to note that Section 37 of
the Act, deals with the procedure to remove Sarpanch. The 1st Respondent
on consideration of complaints, submitted by the 5th Respondent, villagers
of the 2nd Respondent-Gram Panchayat and also the report of the 3rd
Respondent formed an opinion and framed specific charges against the
Sarpanch of the 2nd Respondent-Gram Panchayat. Accordingly, referring to
the same, he has issued show cause notice dated 06.09.2021 to the
Sarpanch of the said village framing specific charges and called for
explanation from him within 7 days from the date of receipt of the said
show cause notice.
21. The Hon'ble Apex Court, in Bhikhubhai Vithlabhai Patel v.
State of Gujarat4 relying on the principle in Barium Chemicals
Ltd. v. Company Law Board5 held as follows -
29. In Barium Chemicals Ltd. v. Company Law
Board [AIR 1967 SC 295] this Court pointed out, on
consideration of several English and Indian
authorities that the expressions "is satisfied", "is of
the opinion" and "has reason to believe" are
indicative of subjective satisfaction, though it is true
that the nature of the power has to be determined on a
totality of consideration of all the relevant provisions.
30. This Court while expressly referring to the
expressions such as "reason to believe", "in the
opinion of" observed:
"63. ... Therefore, the words, 'reason to believe'
or 'in the opinion of' do not always lead to the
construction that the process of entertaining 'reason
to believe' or 'the opinion' is an altogether subjective
process not lending itself even to a limited scrutiny
by the court that such 'a reason to believe' or
(2008) 4 SCC 144
AIR 1967 SC 295
'opinion' was not formed on relevant facts or within
the limits or as Lord Radcliffe and Lord Reid called
the restraints of the statute as an alternative safeguard
to rules of natural justice where the function is
administrative."
22. Further, in Hindustan Petroleum Corpn. Ltd. v. Darius
Shapur Chennai6, the Hon'ble Apex Court held that formation of opinion
is based on subjective satisfaction and the same has to be preceded by
application of mind as regards consideration of relevant factors and
rejection of irrelevant ones.
23. In Barium Chemicals (Supra) the Supreme Court observed the
following -
28. ....... An action, not based on circumstances
suggesting an inference of the enumerated kind will
not be valid. In other words, the enumeration of the
inferences which may be drawn from the
circumstances, postulates the absence of a general
discretion to go on a fishing expedition to find
evidence. No doubt the formation of opinion is
subjective but the existence of circumstances
relevant to the inference as the sine qua non for
action must be demonstrable. If the action is
questioned on the ground that no circumstances
leading to an inference of the kind contemplated
by the section exists, the action might be exposed
to interference unless the existence of the
circumstances is made out.
Therefore, it is clear from the principle laid down by the Apex Court that
an opinion can be formed only by application of mind which should be
based on relevant materials. In other words, relevant factors and available
information should be considered before forming an opinion.
(2005) 7 SCC 627.
24. As discussed supra, the 1st Respondent had issued the impugned
show cause notice to the Sarpanch basing on the complaint of the 5th
Respondent and villagers of the 2nd Respondent Gram Panchaayt and also
on the report of the 3rd Respondent. Therefore, the contention of Sri Vedula
Venkataramana, learned Senior Counsel, that the 1st Respondent has to
form an opinion independently without referring to the complaints and the
report of the 3rd Respondent-DPO, cannot be accepted and the said
contention is not sustainable. The 1st Respondent, being the District
Collector cannot come to an opinion on his own without material.
Therefore, he has relied upon the complaint of the 5th Respondent, villagers
of the 2nd Respondent - Gram Panchayat and also report of the 3rd
Respondent-DPO and has formed an opinion basing on the same and issued
the impugned show cause notice specifically mentioning the same and also
framed the charges. Therefore, according to this Court, there is no illegality
in issuing the impugned show cause notice to the Sarpanch of the villagers
by the 1st Respondent. Therefore, on the said ground, the impugned show
cause notice cannot be set aside.
25. The 1st Respondent has to form an opinion by applying his mind,
as held by the Apex Court. An application of mind should be based on
relevant material. In other words, relevant factors of material available
should be considered before forming an opinion. In the present case, the
impugned show cause notices are issued by the 1st Respondent, on perusal
of the material on record i.e. the complaints of the 5th Respondent, villagers
and the report of the 3rd respondent. Therefore, the contention of Sri Vedula
Venkataramana, learned Senior Counsel that the 1st Respondent had issued
the impugned show cause notice without consideration of the material,
without forming an independent opinion is unsustainable.
26. The Sarpanch, aggrieved by an order of removal to be passed by
the 1st Respondent under Section and 37(5) of the Act or by an intimation
under Sub Section 2 of Section 35 of the Act, within 30 days from the date
of receipt of the order or as the case may be, to be intimated preferring an
appeal to the Gram Panchayat Tribunal. Therefore, there is specific
procedure prescribed under the Act. Thus, there is alternative and
efficacious remedy available to the petitioner herein under the Act. The
petitioner herein, instead of availing the same, filed the present writ
petition.
27. In the result, the W.P.No.22616 of 2021 and W.P.No.22668 of
2021 are allowed. The impugned show cause notices dated 06.09.2021
issued by the 1st Respondent against the Petitioners/Ward Members and
Upa-Sarpanch with regard to their suspension from their positions from the
2nd Respondent Gram Panchayat, is hereby set aside.
and
The Writ Petition vide W.P.No.22640 of 2021 is hereby dismissed.
There is no order as to costs.
28. As a sequel, miscellaneous petitions, if any, pending in these
Writ Petitions shall stand closed.
_________________
K. LAKSHMAN, J
18th October, 2021
vvr
