THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.22917 of 2011 Date: 12.08.2011 Between: Gumti Kishan … Petitioner and State of Andhra Pradesh, Department of Panchayat Raj Wing, rep. by its Principal Secretary to Govt., Secretariat Building, Saifabad, Hyderabad and others. … Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.22917 of 2011 ORDER : Heard Sri Ch. Ramesh Babu, learned counsel appearing for the petitioner, as well as the learned Government Pleader for Panchayat Raj and Rural Development. 2. The petitioner, who is Upa-Sarpanch of Narsampet Gram Panchayat, Warangal District, has filed this writ petition assailing the order dated 6.8.2011 of the 1st respondent-Government, whereunder the State Government has stayed the order No.1121/A2/2011-1, dated 30.7.2011 passed by the 3rd respondent-District Collector, Warangal District, removing the 6th respondent from the office of Sarpanch, Narsampet Gram Panchayat on certain allegations. 3. The facts averred in the affidavit filed in support of the writ petition are that the 3rd respondent initiated proceedings against the 6th respondent, Sarpanch of Narsampet Gram Panchayat, alleging misappropriation/mis-utilisation of Gram Panchayat funds. The said proceedings culminated in an order dated 30.7.2011 resulting in removal of the 6th respondent from the office of Sarpanch as per the provisions of Section 249 (1) of A.P. Panchayat Raj Act, 1994 (for brevity “the Act”). The petitioner states that on 2.8.2011, the 3rd respondent issued proceedings in favour of the petitioner, who is Upa-Sarpanch of the said Gram Panchayat, to act as Sarpanch on temporary basis due to the vacancy caused on account of removal of the 6th respondent. While so, aggrieved by the order dated 30.7.2011, the 6th respondent preferred an appeal to the State Government along with an application to suspend the operation of the said order. The 1st respondent while entertaining the said appeal, by order dated 6.8.2011, which was communicated through Memo No.13035/Pts.II/A1/2011-2, dated 8.8.2011, granted interim order staying the operation of the order dated 30.7.2011 of the 3rd respondent. It is against the said order, the petitioner has filed the present writ petition. 4. Sri Ch. Ramesh Babu, learned counsel for the petitioner contends that the impugned order is not valid. According to him, the petitioner was appointed as Sarpanch on 2.8.2011, much before the appeal preferred by the 6th respondent. In pursuance of the said order, the petitioner assumed the office of Sarpanch and the 6th respondent suppressed this fact and obtained the interim order. He also contends that the said order is not binding on the petitioner since he was not even impleaded as a party-respondent to the appeal preferred by the 6th respondent. It is, therefore, contended that the impugned order is liable to be set aside. 5. I am unable to accept the aforesaid contentions. Admittedly, the petitioner is the Upa-Sarpanch of Narsampet Gram Panchayat. Under Section 26 of the Act, the Upa-Sarpanch is entitled to exercise the powers and perform the functions of Sarpanch when the office of Sarpanch is vacant. The Upa- Sarpanch is entitled to function as Sarpanch in the circumstances enumerated therein. In the instant case, the 6th respondent was removed from the office by order dated 30.7.2011. Therefore, technically, it could be said that a vacancy of Sarpanch had arisen attracting the provisions of Section 26 (1) of the Act. It is, perhaps, for the said reason, the 3rd respondent issued the proceedings dated 2.8.2011 appointing the petitioner as Sarpanch temporarily. 6. Indisputably, the order passed by the 3rd respondent under Section 249 (1) of the Act are amenable for challenge under Section 249 (7) of the Act. The said provision confers a right on an aggrieved person to prefer an appeal to the State Government and the State Government is competent to stay the order appealed against, pending decision on such appeal. Therefore, the 6th respondent availed his right to file an appeal and the State Government has rightly entertained the same. While exercising the discretionary powers under Section 249 of the Act, the State Government also granted interim order, thus eclipsing the order of removal. As a consequence of the same, the 6th respondent is entitled to be restored to the office and discharge his functions as Sarpanch, subject to the further orders by the State Government. When once the order of removal is kept in abeyance or is rendered temporarily invalid, as a consequence thereof, the 6th respondent is entitled to be restored to the office as Sarpanch. Therefore, it cannot be said that there is a vacancy available in the office of Sarpanch, which would justify a Upa-Sarpanch to continue to occupy the office of Sarpanch. The petitioner is, therefore, bound to vacate the office of Sarpanch and make way to the 6th respondent. 7. I am also unable to accept the contention of the petitioner that the appeal was filed without impleading him as a party- respondent to the said appeal and that there was suppression of any material fact by the 6th respondent in obtaining the interim order. The petitioner, who is admittedly Upa-Sarpanch and who was not a party to any proceedings at any stage, is neither a necessary nor a proper party to the appeal filed by the 6th respondent. Further, there is no obligation on the part of the 6th respondent to refer the order dated 2.8.2011 whereunder the petitioner has been appointed as Sarpanch on temporary basis. 8. It may be mentioned here that the impugned order of removal was passed on 30.7.2011 and the 6th respondent filed appeal on 3.8.2011 i.e., within three days, whereas, under Section 249 (1) of the Act, the appeal could have been filed within thirty days. It could be seen that the order dated 2.8.2011 appointing the petitioner as Sarpanch temporarily was passed immediately after the order of removal dated 30.7.2011. 9. For the aforesaid reasons, the petitioner is neither entitled to challenge the impugned order nor is entitled to continue as Sarpanch pursuant to the order dated 2.8.2011 passed by the 3rd respondent. 10. The writ petition is devoid of merits and is accordingly dismissed, at the admission stage. No order as to costs. ________________________ JUSTICE NOUSHAD ALI 12.08.2011. Msr THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.22917 of 2011 12.08.2011 (Msr)