M. Surender vs The State Of Telangana
2022 Latest Caselaw 4867 Tel

      THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                 AND
       THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY


               WRIT APPEAL No.627 of 2022
                          AND
              WRIT PETITION No.35537 of 2022

COMMON JUDGMENT:         (Per the Hon'ble the Chief Justice Ujjal Bhuyan)



      Heard Mr. D.Rama Krishna, learned counsel for the

appellants;     Ms.   G.Jyothi      Kiran,        learned         Government

Pleader   for    Panchayat      Raj       and       Rural        Development

representing respondents No.1 to 4 in W.A.No.627 of 2022;

and Mr. S.Surender Reddy, learned counsel for respondent

No.5/writ petitioner.

2. W.A.No.627 of 2022 challenges interim order dated

20.09.2022 passed in W.P.No.35537 of 2022 filed by

respondent No.5 as the writ petitioner.

3. In the related writ petition, respondent No.5 has

sought for a declaration that notice issued by the Revenue

Divisional Officer convening a meeting of Kotamarthi Gram

Panchayat on 22.09.2022 to discuss no confidence motion

against respondent No.5 is illegal and arbitrary and

therefore to quash the same.

4. In the interlocutory application, a prayer was made to

stay all further proceedings pursuant to such notice issued

by the Revenue Divisional Officer.

5. Respondent No.5 is presently serving as Upa

Sarpanch of Kotamarthi Gram Panchayat, Addagudur

Mandal, Yadadri Bhongiri District.

6. Order dated 20.09.2022 passed in W.P.No.35537 of

2022 reads as under:

"Questioning the Form-IV notice dated 03-09- 2022 issued by the respondent No.4-Revenue Divisional Officer, Bhongiri Division, Bhongiri, Yadadri Bhongiri District, proposing to conduct no-confidence motion in respect of the petitioner' the petitioner has filed the present Writ Petition.

A perusal of the material available on record shows that on earlier occasion, when the petitioner was issued Form-IV notice dated 25-01-2022, the petitioner has filed Writ Petition No. 4951 of 2022 and this Court vide order dated 20-07-2022 has allowed the said Writ Petition by setting aside the Form-IV notice date 25-01- 2022 impugned therein.

A perusal of the order dated 20-07-2022 of this Court in Writ Petition No. 4951 of 2022 clearly shows that while setting aside the Form-IV notice dated 25-01- 2022 impugned therein, no leave was granted to the official respondents to issue Form-IV notice afresh.

The earlier Form-IV notice, which was impugned in Writ Petition No.4951 of 2022, was dated 25-01-2022 and the present Form-IV notice, which is impugned in the present Writ Petition, is dated 03-09-2022.

Having regard to the fact that in the order dated 20-07-2022 passed by this Court in Writ Petition No. 4951 of 2022, this Court has not granted any leave to the official respondents to issue Form-IV notice afresh to the petitioner, the impugned Form-IV notice dated 03- 09-2022 issued to the petitioner by the respondents No.4 is prima facie contrary to the provisions of the Telangana Panchayat Raj Act, 2018, and the Rules relating to Motion of No-Confidence against Upa- Sarpanch of the Gram Panchayat, or President or Vice- President of Mandal Parisahad, or Chairperson or Vice- Chairperson of the Zilla Parishad.

Accordingly, there shall be interim stay as prayed for."

7. From a perusal of the above, we find that learned

Single Judge has basically stayed notice for no confidence

against respondent No.5. Learned Single Judge noted that

on an earlier occasion, notice for no confidence motion was

given to respondent No.5 on 25.01.2022 proposing to hold

the meeting on 31.01.2022. By the order dated

20.07.2022, earlier notice dated 25.01.2022 was set aside.

Learned Single Judge noted that while setting aside the

above notice, no leave was granted to the Revenue

Divisional Officer to issue notice of no confidence.

Accordingly, the notice issued for holding meeting to

discuss no confidence motion against respondent No.5 has

been stayed.

8. The basic ground urged by respondent No.5 was that

fifteen days time was not granted by the notice for holding

meeting to discuss no confidence motion. Therefore, there

was violation of Section 30 of Telangana Panchayat Raj Act,

2018.

9. A Full Bench of this Court in Smt. K.Sujatha v.

Government of Andhra Pradesh1 has held that the

requirement for giving fifteen days clear notice between the

date of notice and the date of proposed meeting is a

mandatory requirement. However, the Full Bench

explained the purpose and object of giving notice and

2004 (2) APLJ 330 (HC)

explained that it was only to give due intimation to the

members of the proposed meeting. If a member gets a

shorter period of notice than fifteen clear days, that would

not matter. Unless some prejudice is shown to have been

caused to such a member by shortfall in the period of

notice, neither the meeting nor the proceedings would be

said to be invalid.

10. Learned counsel for respondent No.5 submits that no

fresh notice of no confidence can be brought in within two

years of earlier no confidence motion. Since the date of the

earlier notice of no confidence is 25.01.2022, the impugned

notice is illegal. Learned Single Judge had rightly stayed

the same.

11. Learned Government Pleader for Panchayat Raj and

Rural Development submits that the earlier notice dated

25.01.2022 did not reach its logical conclusion and was

interdicted by the Court before the meeting could be held.

Therefore, the present proceeding including the impugned

notice is a continuation of the earlier proceeding initiated

for holding meeting to discuss no confidence motion.

12. Panchayats as well as municipalities have now been

brought under the constitutional scheme by way of the 73rd

Constitutional Amendment. The fundamental principle

governing panchayats and municipalities is that these

bodies are to be run and managed on the strength of

popular mandate. A person cannot hold onto office

without having the majority support. Learned Government

Pleader has pointed out that the Revenue Divisional Officer

had only conveyed the sentiments of the majority members

by issuing the notice which is nothing but consequential.

13. We are therefore of the view that on the basis of

technicalities, an elected representative cannot evade the

test to determine as to whether he enjoys majority support

or whether he should continue in office.

14. Therefore and in the light of the above, we set aside

the impugned order dated 20.09.2022 as well as dismiss

the related writ petition i.e., W.P.No.35537 of 2022.

15. However, we direct that the meeting to discuss no

confidence motion against respondent No.5 shall now be

held on 10.10.2022 at 11:00 am.

16. Writ appeal is accordingly allowed.

Miscellaneous applications pending, if any, shall

stand closed. However, there shall be no order as to costs.

______________________________________ UJJAL BHUYAN, CJ

______________________________________ C.V.BHASKAR REDDY, J

23.09.2022 vs