Machireddi Kondala Rao vs The Gram Panchayat, Kothapet East Godavari District

Honourable Mr. Justice Caennakesav Reddy

A simple but interesting question of law arises in this civil revision petition The question is when doss a member of the Gram Panchayat cease to hold the office as such when he has allegedly incurred a disqualification u/s 20 (j) of the Andhra Pradesh Gram Panchayat Act (Act 2 of 1964) hereinafter called ''the Act.'' Is it after the member is intimated, in writing, by the Executive authority of the alleged disqualification incurred by him as required tinier Section 22 of the Act, or immediately on the day he has incurred the said disqualification, whether the member is intimated or not and whether he disputes it or not? The facts giving rise to this question are short and simple. The petitioner is a Member of the Gram Panchayat, Kothapet, He was elected as such in the year 1970. The petitioner carries on business in fire works. He used to obtain the required licence from the Gram Panchayat every year. In the year 1972-73, he did not obtain any such licence. On 3.11.1972, the Executive Officer in charge issued a notice to the petitioner informing him that he had not renewed the licence for his fire works business remitting the licence fee therefore, it was also mentioned in the said notice that if he failed to pay the licence fee steps would be taken to prosecute him u/s 220 (1) of the Act. The petitioner paid the licence fee on 2. 5 1975, and he was granted the renewal for the year 1972-73. Subsequently, the petitioner functioned as a Member of the Gram Panchayat till 13.10. 1973 It appears, sometime in August 1973, the petitioner also signed a notice of no confidence along with some others against the Sarpanch of the Gram Panchayat On 13-12-1973 the petitioner received a notice from the Executive Officer intimating him that since he failed to pay the arrears of the licence fee within 90 days of the receipt of the notice issued to him on 3.11.1972, he ceased to be a member u/s 20 (j) of the Act. The petitioner then filed O.P. No. 10 of 1973, before the Munsiff Magistrate, Kothapet, disputing the allegation of disqualification. The learned District Munsiff dismissed the petition. Aggrieved against the said decision, the petitioner has filed this civil revision petition.

The principal and the main contention of the learned counsel for the petitioner was that a member of a Gram Panchayat does not cease to hold office as such until he is intimated by the Executive Officer of the alleged disqualification suffered by him u/s 20 (j) of the Act and that if before the said intimation the member has paid the arrears of dues due by him, the member does not become disqualified and does not cease to hold office as such In support of his submission, he invited my attention to the executive instructions issued by the Government in Govt. Memo No. 3290/pt-165, I.P.R. dated 1-11-1965 which reads as follows:.....

Arrears are paid before disqualification is detected: If a member pay the arrears of amount before his disqualification was detected by the supervisory staff, he cannot be disqualified subsequently for the same default.

The learned counsel for the Gram Pancthayat, on the other hand maintains that if a member fails to pay any arrears of any dues to the Gram Panchayat within 90 days after the bill or notice is served on him under the Act, he shall automatically case to be a member and no intimation in writing of the said disqualification suffered by the member by the executive authority is called for u/s 20 of the Act.

The answer to the rival contentions of the learned counsel must necessarily be found from the provisions of the Act and the Rules framed thereunder. Section 20 (j) reads:

20 Disqualification of Members-Subject to the provisions of Section 22, a member shall cease to hold office as such if he...(i) fails to pay any arrears of any kind of dues including the sums surcharged otherwise than in a fiduciary capacity to the Gram Panchayat within ninety days after a bill or notice has been served upon him under this Act or, wherein the case of any arrears this Act does not require the service of any bill or notice within ninety days after a notice requiring payment of the arrears, which notice it shall be the duty of the Executive authority of the Gram Panchayat to serve at the earliest possible date has been duly served upon him by the executive authority. Provided that in the case of a Gram Panchayat for which no executive officer is appointed and where the Sarnanch is in arrears of any dues, the notice required to be served under this clause shall be served on him by Inspecting Officer or the District Collector.

It would the be relevant to read section 22 since the provisions of Section 20 are subject to the provisions of Section 22 Section 22 reads:-

Authority to decide questions of disqualifications of members:-- Where an allegation is made that any person who is elected or nominated as a member of a Gram Panchayat is not qualified or has become disqualified u/s 16, Section 17, section 18, section 19, or Section 20 by any voter or authority to the executive authority, in writing and the executive authority has given intimation of such allegation to the member through the District Panchayat Officer and such member disputes the correctness of the allegation so made, or where any member himself entrains any doubt or whether or not he has become disqualified under any of those sections, such member or any other member may, and the executive authority, at the discretion of the Gram Panchayat or the Commission shall within a period of two months from the date on which such intimation is given or doubt is entertained, as the case may be, apply to the District Munsiff having jurisdiction, over the area in which the Office of the Gram Panchayat is situated, for decision.

2) Pending such decision the member shall be entitled to act as if he is qualified or were not disqualified.

A close and combined reading of the provisions of sections 20 and 22 can only lead to one contusion, namely that a member of a Gram Panchayat does not cease to be so the moment he has allegedly suffered a disqualification u/s 20 (j) of the Act. The alleged disqualification incurred u/s 20 (j) is intercepted and is not allowed to operate immediately by the provisions of section 22 of the Act. By way of abundant caution, to check unfounded allegations intending to advance or protect individual interests, the provisions of section 22 are given an overriding effect over the provisions of Section 20 by the Legislature. u/s 22, a member has to be intimated in writing by the executive through the District Panchayat Officer. If the member questions the correctness of the allegation made or himself entertains any doubt whether or not he has incurred any disqualification under the provisions of the Act, the member within a period of 2 months from the date of such intimation, may apply to the District Munsiff having jurisdiction over the area for decision. As per sub-section (2) of Section 22, pending such decision, the member shall be entitled to act as if he is qualified or were not disqualified.

It is thus clear that a member does not cease to hold office as such the moment he allegedly suffers a disqualification u/s 20(j) of the Act. The intimation of the same in writing to the member by the executive authority through the District Panchayat Officer is absolutely essential. The disqualification interposes and the member shall cease to hold office as such if no application is filed by the member before the judicial authority disputing the correctness of the disqualification alleged to have been incurred, within two months from the date of such intimation. I must, however, hasten to explain that this does not mean that incases where the disqualification is patent, such as a convict or a person of unsound mind, a deaf-mute or a leper or an insolvent, etc, the member will continue to be so until an application is filed disputing the said disqualification.

In this case, the petitioner, was intimated in writing about the disqualification suffered by him u/s 20 (j) of the Act, only on 13-12-1973. But admittedly he paid the required licence fee on 2-5-1973 and obtained the licence. Under the administrative instructions issued u/s 20 of the Act by the Government on 1-11-1965 referred to above, a member who has paid the arrears of the amount due before the detection of the disqualification by the supervisory staff, cannot be disqualified subsequently for the same default. Indisputably, notice of the disqualification, in this case, was given subsequent to the payment of arrears. There is absolutely no statutory rule or provision of the Act contrary to the above referred to administrative instructions. In the circumstances, the executive authority was in error in issuing a notice intimating the petitioner on 13-12-1973, that be had suffered a disqualification u/s 20 (j) of the Act, and, therefore, ceased to be a member of the Gram Panchayat.

The learned counsel for the respondent, however, inviting my attention to the decision of this court in National Insurance Co. Ltd. Vs. M. Viswanath and Another, contended that if once the executive authority had issued a bill or notice for the payment of arrears upon a defaulter who has failed to pay the amount, within three months the liability of disqualification automatically ensues. The question in this case is not whether the petitioner has incurred disqualification. The real question is when does a member cease to hold the office as such when he is alleged to have incurred a disqualification or under S. 22(j) of the Act. Therefore that decision is of little relevance. In that case, the members from whom the arrears of taxes had been demanded had not paid the amounts even after the expiry of 3 months. Immediately after the expiry of 3 months notices were issued to the petitioners in those cases. So in that case, there was no necessity to consider the effect of Section 22 of the Act and the instructions contained in the Government Memo dated 1-11-1955 referred to above, u/s 20 of the Act, Therefore, learned counsel for the respondent can gather little or no support from the aforesaid decision. For the reasons recorded above the order of the court below is set aside and the Original Petition is allowed with costs throughout. The Civil Revision Petition is allowed accordingly Advocate''s fee Rs, 100/--