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TMI Blog2021 (10) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. - Writ Petition Nos. 22616, 22640 and 22668 of 2021 - - - Dated:- 18-10-2021 - Hon'ble Judges Kunuru Lakshman, J. For the Appellant : Vedula Venkataramana, Lr. Sr. Counsel and D.B. Chaitanya, Lr. Counsel For the Respondents : Lr. Govt. Pleader, G. Narender Reddy, Lr. Standing Counsel, P. Venugopal, Lr. Sr. Counsel and T. Sudhakar Reddy, Lr. Counsel ORDER Kunuru Lakshman, J. 1(a). W.P. No. 22616 of 2021 is filed by the Petitioners/Ward Members of the 2nd Respondent to quash the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchayat 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 Panchayat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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:- S ection 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llage 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 Gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Limited 1987(1) SCC 424, 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, clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 Gujarat (2008) 4 SCC 144 relying on the principle in B arium Chemicals Ltd. v. Company Law Board AIR 1967 SC 295 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 express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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