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2021 (10) TMI 1410 - HC - Indian LawsJurisdiction to issue SCN - Seeking quashing of SCN issued with regard to suspension of the Petitioners - seeking direction to the Respondents to permit the Petitioners to continue as Ward Members till January 2024 - quashing of SCN seeking removal of the Petitioner from the office of Sarpanch of the 2nd Respondent Gram Panchayat - quashing of SCN seeking suspension of the Petitioner from the office of Upa-Sarpanch of the 2nd Respondent Gram Panchayat. 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? HELD THAT - 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 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. 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. 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 - 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. In RESERVE BANK OF INDIA VERSUS PEERLESS GENERAL FINANCE INVESTMENT CO. LTD. ORS. AND VICE 1987 (1) TMI 452 - SUPREME COURT , 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. 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 - 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. 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 Panchayat 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 - 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. 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. 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 - Petition allowed.
Issues Involved:
1. Jurisdiction of the 1st Respondent to issue show cause notices to Upa-Sarpanch and Ward Members. 2. Procedure for removal of Upa-Sarpanch and Ward Members. 3. Validity of the show cause notice issued to the Sarpanch. 4. Availability of alternative remedies. Issue-wise Detailed Analysis: 1. Jurisdiction of the 1st Respondent to issue show cause notices to Upa-Sarpanch and Ward Members: The petitioners contended that the 1st Respondent lacked jurisdiction to issue show cause notices to the Upa-Sarpanch and Ward Members under Section 37(5) of the Telangana Panchayat Raj Act, 2018. The Act provides a procedure for moving a no-confidence motion against the Upa-Sarpanch, but does not empower the 1st Respondent to remove them via show cause notices. The court agreed, noting that Section 37(5) pertains only to the removal of Sarpanch and does not include Upa-Sarpanch or Ward Members. Therefore, the show cause notices issued to the Upa-Sarpanch and Ward Members were without jurisdiction and were set aside. 2. Procedure for removal of Upa-Sarpanch and Ward Members: The court highlighted that the Act specifies a distinct procedure for the removal of Upa-Sarpanch through a no-confidence motion under Section 30. The Act does not provide a mechanism for the 1st Respondent to remove Upa-Sarpanch and Ward Members directly. The court emphasized that the removal process for Upa-Sarpanch and Ward Members must follow the prescribed statutory procedure, which was not adhered to in this case. 3. Validity of the show cause notice issued to the Sarpanch: The court examined whether the 1st Respondent had properly formed an opinion before issuing the show cause notice to the Sarpanch. The 1st Respondent had based his decision on complaints from the 5th Respondent and villagers, as well as a report from the 3rd Respondent. The court ruled that the 1st Respondent had acted within his jurisdiction and had sufficient material to form an opinion. Therefore, the show cause notice issued to the Sarpanch was found to be valid and not liable to be set aside. 4. Availability of alternative remedies: The court noted that the petitioners had an alternative remedy available under the Act. Specifically, an appeal could be filed to the Gram Panchayat Tribunal against any order of removal by the District Collector. The court emphasized that the petitioners should have availed themselves of this remedy instead of directly filing writ petitions. The court dismissed the writ petition filed by the Sarpanch on this ground, underscoring the importance of following the statutory appeal process. Conclusion: The court allowed the writ petitions filed by the Upa-Sarpanch and Ward Members, setting aside the impugned show cause notices due to lack of jurisdiction. However, the writ petition filed by the Sarpanch was dismissed, as the show cause notice was found to be valid and the petitioner had an alternative remedy available under the Act. The court reiterated the necessity of adhering to the prescribed statutory procedures for removal and the importance of availing alternative remedies before approaching the court.
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