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Judgment
J. Chelameswar, J
This writ petition is filed by six petitioners. AM of them are members of Mandal Praja Parishad of Gudur Mandal, Kurnool District. The second respondent is the elected President of the said Mamlai Praja Parishad. It appears that the first three petitioners are originally members of the Telugu Desam Parly and got elected as candidates of the said party. The total strength of the above-mentioned Mandal Praja Parishad, is ten. One of the members resigned and the consequential vacancy is not filled up by holding election. In the result, there are nine members in the Mandal Praja Parisliad at present, whose total strength is ten.
It appears, on account of some differences between the first three petitioners and the second respondent, the first three petitioners resigned from the Telugu Desam Party. They along with the other three petitioners, sought to move a ''No Confidence Motion'' against the second respondent and the same as taken up for consideration by the first respondent, who is the competent authority under the provisions of the Andhra Pradesh Panchayat Raj Act, 1994, on 5-1-1998. It appears, all the petitioners i.e., six in number voled in favour of the ''No Confidence Motion''. The second respondent and two others voted against the ''Motion''. It appears that the first respondent, however, invalidated the votes of the first three petitioners herein, on the ground that they voted against the ''whip'' issued by the Telugu Desam Party and consequently held that ''No Confidence Motion'' was defeated.
Aggrieved by the said decision of the first respondent, the petitioners filed Writ Petition No.735 of 1998 on the the of this Court. The matter was heard by a learned single Judge of this Court and allowed the said WP by a judgment dated 31-7-1998, following a Division Bench judgment of this Court in Samala Jayaramaiah Vs. Government of Andhra Pradesh and Others, . The learned single Judge held that the decision of the first respondent in invalidating the votes of the first three petitioners is illegal and quashed the proceedings of the first respondent herein dated 5-1-1998. After making the above-mentioned declaration, the learned single Judge directed the first respondent to take appropriate action, in accordance with the provisions of the Andhra Pradesh Panchayat Raj Act, 1994.
Consequent upon such direction, the first respondent considered the matter and once again came to a conclusion that the ''No Confidence Motion'' is defeated, by his proceedings dated 24-8-1998. The first respondent held :
"six members had casted their votes for "No-Confidence Motion" and 3 (three members) against the "No-Confidence Motion".
As per the explanation u/s 245(1) of the A.P. Panchayat Raj Act, 1994 read with the Government Order No.200 Panchayat Raj and Rural Development (Mandal-1) Department, dated 28-4-1998 and G.O. Ms. No.253 Panchayat Raj and Rural Development (Mandal-1) Department, dated 6-6-1998, it is hereby declared that "No Confidence" against Mandal Parishad President Gudur is defeated as there is no 2/3rd majority i.e., 7 members.
Sd/- Revenue Divisional Officer, Kurnool."
Aggrieved by the said decision of the first respondent, the present writ petition is filed.
From the above order of the first respondent, it can be seen that though the first respondent is not very clear as to how the first respondent reached such a conclusion, except quoting that in view of the explanation u/s 245(1) of the Andhra Pradesh Panchayat Raj Act, 1994 and certain other G.Os., presumably and also as asserted by the learned Counsel for the second respondent, the first respondent took the said view in view of the explanation to Section 245(1) of the Andhra Pradesh Panchayat Raj Act, 1994.
It therefore becomes necessary for us to examine the provisions of Section 245 of the Andhra Pradesh Panchayat Raj Act, 1994. The said Section reads as follows:
"245. Motion of no confidence in Upa-Sarpanch, President or Chairman:--(1) A motion expressing want of confidence in the Upa-Sarpanch or President or Vice-President or Chairman or Vice-Chairman 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, Mandal Parishad, or as the case may be the Zilla Parishad 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 person against whom the motion is sought to be moved;
Provided further that no such notice shall be made against the same person more than once during his term of office.
Explanation:--For the removal of doubts, it is hereby declared that for the purpose of this Section the expression "total number of members" means, all the members who are entitled to vote in the election to the office concerned inclusive of the Sarpanch, President or Chairman but 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) I f the motion is carried with the support of not less than two thirds of the total number of members in the case of a Upa-Sarpanch, the Commissioner shall and in the case of President or Vice-President or the Chairman or Vice-Chairman, the Government shall by notification remove him from office and the resulting vacancy sliall be filled in the same manner as a casual vacancy."
It can be seen from the above:
(1) that a motion expressing want of confidence is to be made by a written notice, in the prescribed form to the prescribed authority;
(2) it must be signed by not less than one-half of the "total number of members."
Sub-section (2) stipulates that if the motion is carried with the support of not less than two-thirds of the total number of persons, the Government shall remove the person, against whom the ''No Confidence Motion'' is carried from the office.
What is meant by the expression "total number of members"? The Legislature sought to explain, as noticed above, the said expression. Unfortunately, that explanation itself is not very lucid and gives rise to the present controversy.
The learned Counsel for the petitioners - Sri E. Ayyapit Reddy, submitted that there is a distinction between the expression "total number of members" and the "total membership". This distinction is sought to drawn on an analogy from the provisions of the Constitution under Articles 124(4) and 368(2), where the Constitution makers employed both the expressions- "members" and "membership" in the context of impeachment of Judges and the amendment of the Constitution respectively. The Articles insofar as they are relevant for the purpose of the present case, read as follows:
"''Article 124(4) : A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
"Article 368(2) : An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Rill is passed in each House by a majority of the tatal membership of that I louse and by a majority of not less than two-thirds of the members of that House present and voting, (it shall be presented to the President who shall give his assent to the Bill and thereupon) the Constitution shall stand amended in accordance with the terms of the Bill;
On the other hand, the learned Counsel for the second respondent - Sri M. K Ramana Reddy, senior Counsel, submitted that the expression "total number of members" in Section 245 of the Act means : the total possible members constituting the panchayat.
To assign the correct meaning to the expression "total number of members" occurring in Section 245, in our view, requires an examination of the Scheme of the Act and the relevant provisions of the Act. The Andhra Pradesh Panchayat Raj Act, 1994, is enacted to give effect to the provisions under Part IX of the Constitution. Article 343(b) stipulates that panchayats at village, intermediate and district levels shall be constituted. Accordingly, the 1994 Act provides for the creation of such Panchayats and matters relating thereto. Part III of the Act provides for the constitution, incorporation, composition, powers, functions etc., of Matidal Parishads (Panchayat at intermediate level). Section 148 stipulates that if the State Government may by notification constitute a Mandal Parishad for each Mandal. The expression "Mandal" itself is defined u/s 2, sub-section (22), to be an area declared by the Government by notification u/s 3 of the Andhra Pradesh District Formation Act, 1974. Section 149 stipulates as to who should be the members of such Mandal Parishad. Section 150 contemplates the each Mandal to be divided into as many territorial constituencies, as may be notified by the State and for deciding as to how many territorial constituencies, the Mandal should be divided, certain guidelines are stipulated. Section 151 requires that for each territorial constituency mentioned above, a member should be elected to the Mandal Parishad by the voters of the constituency. Section 153 stipulates that every Mandal Parishad shall have a President and Vice-President, who are to be elected by and from among the elected members in accordance with Section 151 read with Section 149(1)(i).
It may be noticed at the outset the expression "member" is not defined under the Act. In the absence of any definition, must be understood in the context of the provisions and the Scheme of the Act. The opening clause of Section 149(1) reads as follows:
"every Mandal Parishad shall consist of the following members, namely -
(i) persons elected u/s 151"
From the above language, it is clear that a person becomes a member of the Mandal Parishad only when he is elected u/s 151. To be called as a member of the Mandal Parishad, a person must necessarily be elected or must become a member by virtue of the operation of the clauses (ii) to (v) of Section 149, which provide for ex-officio membership of various categories and should continue to be so without ceasing to hold office, in any one of the ways envisaged under the law.
Section 154 provides the term of the office of the members. It stipulates, firstly, that the ex-officio members shall be a member only as long as he continues to hold the office by virtue of which he became such ex-officio member, like, being a Member of Assembly or a Member of Parliament etc., Secondly, the Section stipulates that an elected member holds the office for a term of five years from the date appointed by the Election Commissioner for the first meeting of the Mandal Parishad of the ordinary election. However, during the currency of such term, Section 157 recognises the right of the member to resign his office and on such resignation, such person would ceased to be a member. Apart from that, Section 20 read with Section 156(2) of the Act mandates that a member shall cease to hold office, on the occurrence of any one of the contingencies contemplated therein. The contingencies are: (1) that a member become subject to any of the disqualification specified u/s 19; (2) absents himself from the meeting of the Panchayat for a period of 90 days;
In substance, a person could be called a member of the Mandal Parishad only on his being either elected or otherwise legally qualified to be an ex-officio member of the Mandal Parishad and further, in either case, does not cease to hold the office by virtue of the happening of the contingencies prescribed under the law, which would occasion the cessation of the membership.
In this background, the expression "total number of members" employed in Section 245 of the Act, in our view, must be understood to mean that not the total number of offices that constitute the Mandal Parishad u/s 149, but the persons who are legally occupying such offices as on the date of either the making of the motion or on the date on which the motion is taken up for consideration, is in accordance with the provisions of Section 245 and the relevant rules.
One more reason for coming to such a conclusion is that the scope and ambit of the explanation which could be understood, -by first reading the Section de hors the explanation and Juxta posing the same with the explanation. De hors the explanation, the normal purport of Section 245 would be that if a No-Confidence Motion is to be moved, it must be by not less than one half of the total members of the Mandal Parishad, which means all the ''members'' falling under the various categories of Section 149, both ''elected'' and ''non-elected'' as noticed above. In such a case, more number of persons would be required to participate in the process of the removal of the President than the number of persons who actually elected him. Apart from that, that category of ''members'' who have no say in the matter of the election of the President, by virtue of Section 153, would have a say in the matter of the removal of the President. A situation which appears to be illogical and irrational, in the context of representative democracy. To avoid such a situation, in our view, the explanation is added to see that those categories of members who have no say in the matter of election of President are also not given a say in the matter of the removal of such an elected President.
Then comes the most trouble-some part of the explanation:
"but irrespective of any vacancy existing in the office of such members at the time of meeting."
The learned Counsel for the respondent No.2 - Sri Ramana Reddy, sought to argue that the said clause mandates and means the totality of the possible membership of the Mandal whether occupied or not. The learned Counsel relied upon a decision reported in Vishwarasaro Dajibarao Ghuge Vs. Vallabhdas Sheonarayan Sharam and Others, , The Division Bench of the Bombay High Court, while dealing with the Panchayat Samithis Act of State of Maharashtra, held that the expression "the total number of members" of the Panchayat Samithi meant" the totality of the membership of the Samithi, but not members actually sitting in the Samithi on a particular day". The Division Bench reached such a conclusion repelling an argument that the expression "total number of members" of the Panchayat Samithi meant only the total number of members present at the meeting on a given day. Their Lordships came to the above conclusion, in view of the fact that wherever the Legislature wanted to stipulate that a particular result should be achieved by the majority of the members present and voting, the Legislature categorically mentioned the same. In the present case, no such distinction on the language of the Andhra Pradesh Panchayat Raj Act, is brought to our notice.
Apart from that, if we accept the construction suggested by Mr. Ramana Reddy, there would be an anamoly in the working of the Act. While u/s 153 of the Act, for the purpose of electing the President, it is not required that the totality of the possible membership should exist on the date of the election.
Such being the case, to insist that for the purpose of moving a ''No Confidence Motion'', the totality of the possible membership should be taken into consideration, would lead to an illogical situation. In a case like the present one where one of the elected members had resigned and the consequential vacancy is not filled up, though the incumbent of the office of the President does not enjoy the requisite support of the majority of the members existing as stipulated under the Act, he would still continue to hold the office contrary to the wishes of the majority of the existing members, which in our view, is a very undemocratic practice. Looking at this angle, the last clause of the explanation, in our view, should be understood to say that the existing vacancies, if any should be ignored.
It is no doubt true that the total strength of Mandal Praja Parishad, Gudur Mandal is ten. Out of ten members, one elected member resigned and the consequential vacancy is not filled up by holding election. So, far all practical purposes, there are only nine members in the Mandal Praja Parishad. Out of those nine members, six members have voted in favour of the ''No-Confidence Motion'' and three members have voted against the said ''Motion''. Our view of understanding the explanation to the proviso to Section 245 of the Act, 1994, as indicated above, is further strengthened by the meaning given to the expression ''member'' in the Act which says that persons elected u/s 151 shall be called as ''members''.
Sri M. V. Ramuna Reddy, learned senior Counsel for the second respondent contended that as the total strength of the Gudur Mandal Praja Parishad is ten, in terms of Section 245 of the Act, 2/3rds of such total strength often would be seven members. However, learned senior Counsel contended that only nine members attended the meeting and out of those nine members, six members voted in favour of the ''No-Confidence Motion'' and three members voted against the motion, and as such the members who voted in favour of the ''No-Confidence Motion'' are only six, and" they constituted less than the 2/3rds of the total members. Counsel therefore, placing reliance on the words "but irrespective of any vacancy existing in the office of such members at the time of meeting" appearing at the latter part of the ''explanation'' to the proviso of Section 245 of the Act, contended that irrespective of any existing vacancy, the 2/3 rds of total members shall be required to vote in favour of a ''No-Confidence Motion'' and then only it is said to have been carried through. Learned senior Counsel further contended that as there is one existing vacancy in the Parishad and only six members have voted in favour of the ''No Confidence Motion'', the six members by themselves cannot constitute 2/3rd of the total strength of the Mandal Parishad and as such, the No-Confidence Motion cannot be said to have been carried through. This line of argument of the learned senior Counsel appearing on behalf of the second respondent cannot be accepted for more reasons than one. As seen from the 21st Century Chambers Dictionary, the meanings to the word "irrespective" is given as ''not taking into account'' and ''without reference to''. Thus, no other contrary meaning could be drawn from the word "irrespective" than that of ''not taking into account''. Keeping in view the above meaning assigned to the word "irrespective", if we look at the latter part of the explanation to the proviso to Section 245 of the Act, the intention of the Legislature is quite clear to say that the ''total number of members'' means all the members who are legally entitled to vote in the election to the office concerned including the Sarpanch, President or Chairman and any vacancies existing in the office of such members at the time of the meeting be ignored.
Admittedly, though the total strength of the Gudur Mandal Praja Parishad is ten, on account of one existing vacancy, only nine members have participated in the proceedings of the ''No-Confidence Motion'' and out of those nine members, six members have voted in favour of the ''No-Confidence Motion'' and three members have voted against the said ''Motion''. As the latter part of the ''explanation'' to the proviso to Section 245 of the Act provides to ignore any existing vacancy in the Mandal Praja Parishad in arriving at the "total number of members", out of the existing nine members of the Gudur Mandal Praja Parishad, six members would be sufficient to constitute 2/3rds majority and accordingly, the ''No-Confidence Motion'' against the second respondent is carried through by 2/3rd majority. In this view of the matter, we are of the considered view that there is no ambiguity at all in the explanation brought out to the proviso u/s 245 of the Act. The emphasis by the learned senior Counsel for the second respondent to take a different meaning to the latter part of the said explanation is unsustainable, having regard to the above discussion. The language employed by the Legislature in the "explanation" paragraph, when read harmoniously with the provisions of Section 245 of the Act, conveys the meaning none other than the existing vacancies, if any, could be ignored in computing the total number of members of a Mandal Praja Parishad. We, therefore, reject the contention of Sri M. V. Ramana Reddy, learned senior Counsel appearing on behalf of the second respondent in this regard.
Though Sri M. V. Ramana Reddy, learned senior Counsel appearing on behalf of the second respondent has cited the decisions reported in Gayam Eswaramma Vs. Government of A.P. and others, , Tiparthi Chandra Mouli Vs. Government of Andhra Pradesh and Others, , M Raja Reddy v. Revenue Divisional Officer 1998 (6) ALD 167 and in Manujusna Kadam (Smt.) and Others Vs. Govt. of A.P. and Others, , we are of the considered view that the ratio laid down in these decisions cannot lend any assistance to the learned senior Counsel appearing on behalf of the second respondent in view of the facts and circumstances of the instant case.
In the light of the above discussion, we are inclined to say that the first respondent fell in error in declaring that the ''No-Confidence Motion'' against the second respondent is not carried through. We declare that the ''No-Confidence Motion'' is carried through against the second respondent and is not entitled to function as President of Gudur Mandal Praja Parishad. We therefore, set aside the proceedings in Rc.C. 3845 of 1997 dated 24-8-1998 passed by the first respondent. Consequently, we direct the first respondent to take steps and ensure that the second respondent hands over the charge of the post of the President, Gudur Mandal Praja Parishad, to the Vice-President of the said Mandal Praja Parishad, forthwith.
In the result, the writ petition is allowed, however, without costs.