Mirza Riyaz Baig vs The State Of Telangana,
2023 Latest Caselaw 194 Tel

              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

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

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:

" 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.

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

2004(1) ALD 54 (DB)

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.

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

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

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