THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + W.P.Nos.4863, 4766, 4823, 5055, 4758, 5193, 4628 of 2009; and W.P.No.6429 of 2009 COMMON JUDGMENT: % 28-04-2009 Between: Mendaguthiti Veeravenkata Anand Newton and others …Petitioners And The Revenue Divisional Officer, Kakinda Division, Kakinada, East-Godavari District and others …Respondents ! Counsel for Petitioners : Sri V. Sesha Kumari, Sri Mummaneni Srinivasa Rao Sri A. Sudarshan Reddy Sri Nageswar Rao Palle Sri M. Madhava Reddy Sri Kowturu Vinayakumar Sri K. Sreenivas Sri Kummathi Venkatesulu ^ Counsel for Respondents : G.P for Panchayat Raj < Gist: > Head Note: ? CITATIONS: 1)AIR 1991 Delhi 160 2)AIR 1987 SC 248 3)2004 (5) ALD 807 (LB) THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY W.P.Nos.4863, 4766, 4823, 5055, 4758, 5193, 4628 of 2009; and W.P.No.6429 of 2009 COMMON JUDGMENT: The petitioners in W.P.Nos.4628, 4863, 5055 and 5193 of 2009 were elected as Upa-Sarpanches of different Gram Panchayats. The petitioners in W.P.Nos.4758 and 4823 of 2009, and respondent No.4 in W.P.No.6429 of 2009 were elected as Presidents of Mandal Parishads, and petitioner in W.P.No.4766 of 2009 was elected as Vice-President of Mandal Parishad. The election to the said offices is indirect. While the Upa-Sarpanches of the Gram Panchayats are elected from among the Ward Members, the Presidents and Vice- Presidents of Mandal Parishads are elected from among the Mandal Parishad Territorial Constituency Members (MPTC). The procedure in this regard is prescribed by the A.P. Panchayat Raj Act, 1994 (for short ‘the Act’) and the Rules made thereunder. Section 245 of the Act provides for Motion of No-Confidence against Upa-Sarpanches of Gram Panchayats, and Presidents or Vice- Presidents of Mandal Parishads, etc. The requisition for tabling the Motion of No-Confidence is to be signed in the prescribed form, by not less than one-half of the Members of Gram Panchayat, or Mandal Parishads, as the case may be. The Revenue Divisional Officer of the concerned area is conferred with the power to issue notices in the prescribed form, under the Rules published in G.O.Ms.No.200, dated 28-04-1998, proposing to convene a meeting, to take up the Motion of No-Confidence, if he finds that the requisition is according to law. First proviso to Section 245 of the Act prohibits the Motion of No- Confidence within two years from the date of assumption of the office, by the person, against whom it is sought to be moved. Notices were issued by the requisite number of Members of the Gram Panchayat or MPTC, indicating their intention to express want of confidence against the Upa-Sarpanches of Gram Panchayats, Presidents or Vice-Presidents of Mandal Parishads, who are parties to these writ petitions. Notices in the prescribed forms were issued by the concerned Revenue Divisional Officers. However, before the meetings were held, the A.P. State Legislature amended Section 245 of the Act, and in particular, the first proviso. The period of ‘two years’, mentioned in that provision, is enhanced to ‘four years’. In other words, the period of ban against moving the Motion of No-Confidence under that provision is now stipulated as ‘four years’ from the date of assumption of office. The petitioners, in all the above writ petitions, except the one in W.P.No.6429 of 2009, challenge the proceedings initiated against them, on the ground that the meetings to take up the motion of no confidence cannot be held, in view of the amendment to Section 245 of the Act. The facts in W.P.No.6429 of 2009 are slightly different. In that case, the notice was issued, fixing 26.03.2009 as the date for convening the meeting to take up the Motion of No-Confidence. However, through an endorsement, dated 19.03.2009, the Revenue Divisional Officer has withdrawn the earlier notice, in view of the amendment to Section 245 of the Act. The endorsement is challenged by the signatories to the Motion of No-Confidence. For the sake of convenience, the persons against whom no confidence motions are initiated, are referred to as the petitioners. The petitioners contend that the Legislature intended to ensure stability and continuity of the term of the office of Upa- Sarpanches of Gram Panchayats, and Presidents or Vice-Presidents of Mandal Parishads to the extent possible and to avoid uncertainty. According to them, the proceedings, even if initiated before the amendment, cannot be taken further, once the provision was amended. Exactly the opposite view, is canvassed in W.P.No.6429 of 2009. Counter-affidavits are filed by the official respondents in some of the writ petitions. It is stated that the prohibition under proviso to Section 245 of the Act is against issuance of notices, expressing want of confidence, and as the notices were issued before the amendment came into force, the proceedings do not get affected. They state that once the procedure prescribed under the Act and the Rules was followed, the subsequent amendment does not nullify the same. Learned counsel for the petitioners submit that the process of Motion of No-Confidence is a compendious and single event, commencing with the service of notice and culminating in passing of a resolution, and the ban impose through the first proviso to Section 245 of the Act applies to the entire process, and not to isolated stages. They submit that a valid right accrues to the elected representatives to continue up to a particular term and such right cannot be taken away, unless it is specifically provided for. The learned Government Pleader for Panchayat Raj, and learned counsel appearing for the contesting respondents and petitioner in W.P.No.6429 of 2009, on the other hand, submit that the members of the Gram Panchayat or Mandal Parishad, as the case may be, are conferred with the right to express want of confidence in the Upa-Sarpanches; and Presidents and Vice-Presidents of the Mandals, respectively, under Section 245 of the Act. They contend that the prohibition contained in the proviso to Section 245, irrespective of the period, is only against issuance of notices of requisition and once such requisition is given, the subsequent extension of the period of ban is of no legal consequence. Counsel for both the parties have relied upon certain decided cases. The Act provides for a three-tier system of Panchayat Raj Institutions. At the top are the Zilla Parishads, in the Middle, the Mandal Parishads, and at the bottom, the Gram Panchayats. The Zilla Parishads have Chairman and Vice-Chairman, the Mandal Parishads have President and Vice-President; and the Gram Panchayats have Sarpanch and Upa-Sarpanch, at the helm of affairs. Except for the office of Sarpanch, elections to the rest of the offices mentioned above are indirect in nature. The elected Territorial Constituency Members of Zilla Parishad, or Mandal Parishad, or the members of the Gram Panchayat, as the case may be, would elect the Chairman and Vice- Chairman of the Zilla Parishad, President and Vice-President of Mandal Parishad and Upa-Sarpanch. Constitution, administration etc., of the Gram Panchayats, Mandal Parishads and Zilla Parishads is provided for under Parts-II , III and IV of the Act, respectively. Section 14 of the Act, which stipulates the term of the office of the Sarpanch as five years, is silent about the term of the office of the Upa-Sarpanch. Read in the context of Section 13, even this office is for a term of five years. The term of the President and Vice-President of the Mandal is stipulated under Section 153 (5), as five years from the date, prescribed by the State Election Commission, for the first meeting of the Mandal after the ordinary election. Identical provision in respect of Zilla Parishads is, Section 182. Section 245 of the Act enables the members of the concerned local bodies to table motion of no confidence, against the indirectly elected heads or deputy heads of the organizations. The provision reads as under: “Sec.245: Motion of no confidence in Upa- Sarpanch, President or “Chairperson”:- (1) A motion expressing want of confidence in the Upa-Sarpanch or President or Vice-President or “Chairperson” or “Vice-Chairperson” 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”. Rules are framed, to supplement the procedure. A perusal of the provision extracted above, discloses that the exercise of expressing want of confidence against the concerned head or deputy head of the local body is comprehensive. Unlike the procedure stipulated for election, a notification by the State Election Commission, or the District Election Authority is needed, not for tabling or carrying out a motion of no confidence. The process is not compartmentalized into the stages, comparable to publication of notification, filing of nominations, withdrawals, publication of list of valid nominations, after withdrawals, polling etc. Once a notice is signed by not less than half of the members of the local body, in Form- I, for Gram Panchayats, and Form-II for Mandal Parishads, the Revenue Divisional Officer is required to issue notices in Form Nos.IV and V, respectively, proposing to convene the meetings by maintaining gap of 15 days from the date of notice to the date of meeting, if the signatures on the forms are found to be genuine. There is no dispute that notices, in the instant cases, in Form-I or II, as the case may be, were issued after expiry of two years from the date of assumption of office of the concerned persons. However, before the meeting was held, the first proviso was amended through Act, 1 of 2009, by enhancing the period of ban from two years to four years. In some cases, the meetings were held, but the outcome thereof did not become effective. Notices by the R.D.O., had to be issued once again. If a grammatical or purely etymological meaning is given to the first proviso to sub-section (1) of Section 245 of the Act, the ban or prohibition may appear to be only against issuance of notice of motion, within a particular period, from the date of assumption of the office. Extensive arguments are advanced to the effect that applying the amended provision to the proceedings, which have already commenced, would amount to giving the retrospective effect to it, and there is nothing in the Act 1 of 2009 to indicate that the amendment would operate retrospectively. Reliance is placed upon the judgment of the Delhi High Court in Mrs. Nirmaljit Arora, v. M/s Bharat Steel Tubes Ltd[1]. In opposition to this, the judgment of the Supreme Court in H. Shiva Rao v. Cecilia Pereira[2], and a judgment rendered by a Larger Bench of this Court in Vallabhaneni Lakshmana Swamy v. Valluru Basavaiah[3] were cited. On a consideration of the arguments advanced on behalf of the parties, this Court is of the view that the question of retrospectivity does not arise, in the instant cases. Whether under the amended or unamended provision, the bar is against moving motion of no confidence within a particular period. The intention of the Legislature was clear and unambiguous. By amending the first proviso to Section 245 of the Act, the Legislature intended that, motion of no confidence shall not be moved before expiry of four years, from the date of assumption of the office. The question of retrospectivity would have arisen, if only a motion of no confidence, which was passed in accordance with the unamended provision is sought to be set at naught, on the basis of the amendment. When such motion was not carried out, by the time the Act was amended, the concept of retroactivity becomes irrelevant or would pale into insignificance. One of the steps in the entire process of no confidence motion, viz., issuance of a notice, which occurred before the amendment, cannot be viewed in isolation, and on that basis, the actual purport of the amendment cannot be watered down. Assuming that an element of retrospectivity is involved, still the petitioners cannot be made to face the motion of no confidence. It is settled principle of law that, though retrospective effect cannot be given to an enactment or amendment, unless specifically provided for; in certain cases, it can be construed to have retrospective operation, if the language of the relevant provision, and the dominant intention of the Legislature warrant such approach. In Vallabhaneni Lakshmana Swamy’s case (3 supra), a Larger Bench of this Court, after referring to several treatises on interpretation of statutes, held that if the language or the dominant intention of the enactment so demands, the Act must be construed to have retrospective operation. (See para 26 of the judgment) The judgment of the Delhi High Court in Nirmaljit Arora’s case (1 supra), dealt with the general principle of retrospective operation of the statues. The same does not apply to the facts of the present case. Even if two conflicting views are possible in the facts of the instant cases, the one, which enables an elected representative, to complete the term, must be adopted. It has already been mentioned that the Act confers a right on an elected person, to be in the office for the fixed term of five years. Termination thereof, before expiry of the full term is an exception. An exception is to be construed strictly, and as far as possible, in such a way, as not to take away the rights, that are conferred under the general provision. Hence, Writ Petition Nos.4863, 4766, 4823, 5055, 4758, 5193 and 4628 of 2009 are allowed, and Writ Petition No.6429 of 2009 is dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.28–04-2009. Note: L.R. copy to be marked. (B/O) GJ/KO* [1] AIR 1991 Delhi 160 [2] AIR 1987 SC 248 [3] 2004 (5) ALD 807 (LB)