* THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND *THE HONOURABLE SRI JUSTICE R.KANTHA RAO + WRIT PETITION No.12813 of 2008 % 7.11.2008 # Smt Pulimi Sailaja Reddy ….. Petitioner and $ The State of A.P. rep., by its Secretary, Municipal Admn & Urban Dev, Secretariat Buildings, Hyderabad and two others. .. Respondents ! Counsel for the petitioner: Sri K.R. PRABHAKAR. ^ Counsel for the Respondent: GP FOR MUNCIPAL ADMN. & URBAN DEV. < Gist: >Head Note ? Cases referred 1) 2008 (4) SCC 720 2) 2007 (11) SCC 528 3) 2008 (9) SCC 1 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SEVENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO and THE HON'BLE MR JUSTICE R. KANTHA RAO WRIT PETITION NO : 12813 of 2008 Between: Smt. Pulimi Sailaja Reddy W/o. Pulimi Ratnakar Reddy Municipal Corporation of Nellore, R/o. 17-226, Yadlavari Street, Nellore, Potti Sriramulu Nellore District. ..... PETITIONER AND 1 The State of Andhra Pradesh Rep. by its Secretary, Municipal Administration & Urban Development Department, Secretariat, Saifabad, Hyderabad. 2 The Nellore Municipal Corporation, Rep. by its Commissioner, Nellore Potti Sriramulu Nellore District. 3 Sri Aanam Vivekananda Reddy S/o. Late Anam Venkata Reddy Member of Nellore Municipal Corporation, R/o. 101, Kapu Street, Nellore, Potti Sriramulu, Nellore District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue an appropriate writ order or direction more particularly one in the nature of writ of Mandamus declaring the action of the Government in initiating Proceedings to remove the petitioner from the oﬃce of the Mayor, Nellore Municipal Corporation as illegal, unjust arbitrary capricious and violative of Article 14 and 21 of the Constitution of India and also violative of Principles of natural justice apart from vitiated by malice in law and tained with mala ﬁdes and contrary to due process of law and viod ab initio, after declaring Section 679-B of the Hyderabad Municipal Corporation Act, 1956 as illegal, unjust, arbitrary and unconstitutional and further declare that the action of the Government in initiating impugned proceedings in Memo No. 6929/Elec.II/2008 dt. 13-6-2008 as vitiated by malice in law, tainted with mala ﬁdes contrary to due process of law and viod ab initio and consequentially strike down Section 679-B and also set aside Memo NO. 6929/Elec.II/2008 dt. 13-6-2008 and pass Counsel for the Petitioner:MR.K.R.PRABHAKAR Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following : THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.12813 of 2008 JUDGMENT: (PER Hon’ble Sri Justice B.Prakash Rao) The petitioner herein, who is a Mayor of the Municipal Corporation of Nellore ﬁles this writ petition seeking for a Mandamus declaring the action of the Government in initiating proceedings to remove her from the said oﬃce, as illegal and violative of Article 14 and 21 of the Constitution of India apart from being violative of principles of natural justice and further vitiated by malice in law and tainted with mala ﬁdes while seeking a declaration primarily that Section 639-B of the Hyderabad Municipal Corporation Act 1956 as unconstitutional, consequently to hold that the action of the government in initiating the impugned proceedings vide Memo No.6929/Elec.II/2008, dated 13-06-2008 as void and to set aside the same. The facts giving rise to the present proceedings are that the petitioner was elected as Corporator from Ward No.38 of the Nellore Municipal Corporation in the elections held on 24-09-2005 and subsequently she got elected unanimously to the post of Mayor in the election, conducted on 30-9- 2005. She has taken charge on 5-10-2005 and thus the term of the oﬃce comes to an end on 29-09-2010. She states that there are in all 50 Wards in the Municipality; of which Congress won 19, TDP-20, Independents-5, C.P.M- 4 and BJP-2, apart from four Ex-oﬃcio members viz., one Member of Parliament and three members of Andhra Pradesh Legislative Assembly, including the 3rd respondent herein. She takes to her credit about several developmental activities taken up for the betterment of the city by procuring substantial funds. However, she states that the 3rd respondent, who is MLA from local Nellore Assembly Constituency and Ex-oﬃcio member of the Corporation, along with his henchmen, is trying to create hurdles for no fault of her. It is only in pursuance of such avowed motive, the impugned show- cause notice dated 13-6-2008 is being given, which is served on her on 14-6- 2008. In the said notice, certain charges have been alleged to the eﬀect that she is not discharging the duties legitimately and willfully omitted to carry out the provisions of the Act and Rules made there under, and that she has abused the powers vested in the oﬃce as Mayor and called upon to give explanation within 7 days. According to her, all those allegations and charges are totally vague and do not have any basis and are invented only for the purpose of removing her from the post. Therefore, she has ﬁled the present writ petition, inter alia seeking to assail the constitutional validity of Section 679-B of the Hyderabad Municipal Corporation Act under which the said action is initiated and consequently to set aside the same. Hence, stating that though she need not reply to the show cause notice, however, as abundant caution, she has filed an explanation as a ritual. According to her, Section 679-B of the said Act violates Article 14 and 21 of the Constitution of India and is in the teeth of the 74th Constitutional Amendment Act i.e., Part IX-A of the Constitution read with 12 th Schedule of the Constitution of India. Since the basis for such action on mere formation of opinion by the Government it vests totally an arbitrary exercise of power to remove an elected peoples’ representative, such course is quite opposite to the tenets of Article 14 of the Constitution of India and the object and intent of the 74th Constitutional Amendment. Further, as per Article 243U of the Constitution the term of 5 years is assured to an elected Mayor of the municipality, which is an independent local institution. Therefore conferring of such sweeping power in respect of institution under Article 243 (P) of the Constitution of India unlike corporation is totally unconstitutional. Therefore, the said provision defeats the object and scope. An elected representative is virtually kept under mercy of the government in spite of such constitutional safeguard enshrined. Even otherwise, prescribing a disqualiﬁcation for future election under Clause (3) of Section 679-B of the said Act eﬀects the rights of the citizen to contest for a democratic oﬃce. Therefore, the entire process as initiated there under is only a make belief, and thus, the same does not cater to the limitations prescribed under the aforesaid provisions of the Constitution of India. Further, in support, the petitioner pleaded mala ﬁdes on the part of the 3rd respondent herein, who is a local MLA and an Ex-oﬃcio member of the Corporation. The brother of the 3rd respondent Sri Anam Ram Narayana Reddy is the Minister in the cabinet of the Government of Andhra Pradesh being elected as MLA from the Rapur Assembly Constituency. Both of them are using their political inﬂuence by adopting dictatorial attitudes. It is only at the instance of 3rd respondent, who has become inimical and who wants to de-thrown her from the post, the impugned action is taken up. In support, the petitioner has narrated various incidents that occurred at Nellore on 2-6-2007 , where in a function she was not invited to the dias during the visit of Chief Minister, which has been reported in the press widely on 3-6-2007 for singling out her and ill-treatment meted. Secondly, there is a complaint by the Commissioner of the Corporation himself on 27-7-2007 about the behavior of the corporators. The 3rd respondent claims that the petitioner has been installed at his instance, even though she is not qualiﬁed, the said statement appeared in press on 26- 1-2008. Thus, there have been several such ill-treatments and harassments meted out to the petitioner and the petitioner has been assaulted by some of the lady corporators, which has been reported in the local edition of the newspaper on 18-4-2008. The petitioner ﬁled a police case complaining about assault on her. The 3rd respondent went on reporting to the press as evident from the report in the newspapers, dated 20-4-2008 that the petitioner has to be sacked. The 3rd respondent addressed several letters including the letter dated 23-4-2008 against the petitioner to remove her from the office. Ultimately, all these incidents and the alleged letters from the 3rd respondent have virtually lead the government to issue the impugned show- cause notice to the petitioner. On the face of it, the petitioner states that since the action is tainted with mala ﬁdes being at the instance of the 3rd respondent, who is closer to the higher quarters of the ruling government has to be set at naught. Even otherwise, the show-cause notice only repeats the contents of very same complaints given by the 3rd respondent and is a virtual reproduction thereof without applying mind. Therefore, there is absolutely no due consideration on its own by the Government in the initiation of the said process. In respect of certain allegations made in the show-cause the petitioner sought to explain to them in detail about the services and the extent of need, which she would secure for the corporation in respect of certain works. Therefore, it is stated that the entire allegations and the charges as leveled against her are not correct, but are tainted with malice. Thus, she submits that there is neither any illegal act on her part nor any abuse of power, much less misuse thereof. In view of such serious action taken recourse to for no fault on her part, the petitioner submits that she has to invoke the extraordinary Jurisdiction of this Court under Article 226 of the Constitution of India, hence, the writ petition. Pending the writ petition, in the interim application seeking suspension of the proceedings dated 13-6-2008, after ﬁling of the counter aﬃdavit by the respondent No.1, this Court passed the interim orders in WPMP.No.16527 of 2008, dated 27-2-2008 suspending the same, mainly, taking note of the allegations of mala ﬁdes against respondent No.3, which prima facie require to be gone into in the writ petition and that even though the government had conducted earlier two preliminary enquiries followed up by the respective reports prior to the issuance of show cause notice, but the same does not ﬁnd place in the show cause and even in the counter affidavit, there is no explanation for the conspicuous absence. The main writ itself was directed to be posted for ﬁnal hearing. Accordingly, ﬁnal arguments were taken up. In the meanwhile, on behalf of the respondent No.1-government an additional counter aﬃdavit and the contesting respondent No.3 counter aﬃdavits have been ﬁled. In the additional counter aﬃdavit ﬁled by the respondent No.1/Secretary to Government, Municipal Administration, Urban Development Department, the allegations and the pleas raised on behalf of the petitioner are denied. It is alleged that there were several complaints, from various corporators including the 3rd respondent. However, the government did not act on those complaints hastily. To ﬁnd the truth, a fact- ﬁnding enquiry was ordered as per the government Memo dated 5-5-2008, where upon the enquiry oﬃcer submitted a report on 20-5-2008. Further, again as per the directions given in Memo dated 3-8-2007 with regard to some more allegations against the petitioner, an enquiry was ordered and whereupon the enquiry oﬃcer submitted another report, a second one, on 30- 1-2008 and the same was forwarded by the Commissioner and Director of Municipal Administration as per the letter dated 19-4-2008. Basing on ﬁndings in these two reports, the government has issued show cause notice dated 13-6-2008. However, it was alleged that by oversight there is no reference with regard to these two earlier enquiries and reports in the show cause. However, the base for issuance of impugned notice is stated to be on the reports dated 31-3-2008 and 30-5-2008. Further, it was submitted that those reports are only fact ﬁnding preliminary enquiries and would not in any way vitiate the proceedings. That apart, the petitioner can as well submit an explanation and the same can be considered and ultimate ﬁnal opinion can be arrived at, after considering all the material on record. In the earlier counter, the allegations as against the constitutional validity of Section 679- B of Hyderabad Municipal Corporation Act as alleged by the petitioner apart from being denied, stated that there is no basis in the plea raised by the petitioner. In the counter aﬃdavit ﬁled by the respondent No.3, there is a denial of entire allegations made against him and further states that these false and reckless allegations are made only with a view to sub-serve her interest. It was stated that since the petitioner was elected as a Mayor she is not adhering to the norms required to be maintained by the first citizen of the city and the administration of the Corporation suﬀered very badly on account of increased corruption at higher levels coupled with mal-administration on all aspects and civic works. Nellore Town which has been already suﬀering with open drainage, is worst hit even if there were to be showers. Further details have been given as to how there is failure on her part in convening the General Body meeting and attending to the works of the need. Further, it is stated by him that being the local MLA he is an ex-oﬃcio member of the Corporation and is accountable to the people and owes greater responsibility to the people, and thus the complaints made by him are only an endeavour to see that the petitioner undertakes measures to carry out all pending projects etc. Further having failed in all attempts, all the corporators belonging to CPM, CPI, TDP and Congress Parties represented to the Government against ill-performance. Therefore, nothing as such can be attributed only against him nor the petitioner can raise any plea of mala ﬁdes against the said respondent alone. It is only due to the worst scenario existing and suﬀerings of the residents of the town, in discharge of his obligations complained to the government, so that remedial measures, in accordance with law can be taken. In regard to the news items appeared in the papers, the 3rd respondent denied the same stating that he never made any statement, which would impair the dignity or reputation of anybody, much less the petitioner. Therefore, all those reports are not correct and there is no proper reporting. The entire allegations leveled against him are not true and there are absolutely no mala ﬁdes on his part. He denied about having any political clouts in higher circles as alleged in the writ petition and states that he is only a humble peoples’ representative elected to the Legislative Assembly. Further, he states that he belongs to the Congress party could not have possibly engineered to get the complaints from several other parties’ corporators belonging to BJP, CPM, TDP and the independents. The 3rd respondent swears to the fact that he has no ill-will against the petitioner. The other allegations about the arrogance and dictatorial attitude etc, are denied. He referred to several other facts in regard to the aﬀairs of the Corporation. He states that he does not have any henchmen. In fact, the petitioner herself maintains a circle and surrounded by men and lady corporators. The press statement made by him on 20-4-2008 was sought to be explained. He further states that he never had any personal grudge against the petitioner, especially, when the petitioner has been chosen by party high command as a candidate and she was elected unanimously and all the party men including himself stood behind her. Therefore, he submits that there is no illegality behind the impugned action nor does it suﬀers from any mala fides. Further the provision under Section 679B of the Act, suﬃciently protects the interests with due procedure and therefore there are no merits in the writ petition. At the time of hearing, two set of applications have been filed by the 3rd party-petitioners to get themselves impleaded vide WPMP.24839 of 2008 and WPMP.16527 of 2008. In each of these applications, a support is indicated for one side or the other. The respective respondents therein ﬁled a counter, blaming that the proposed parties are supporters of other side. However, having heard the counsel and in view of the interest as claimed and with a view to give opportunity, both the petitions were ordered. Heard Sri S.Ramachandra Rao, the learned senior counsel appearing for the petitioner, the learned Advocate General appearing on behalf of the respondent No.1, Sri S.R.Ashok, the learned Senior Counsel appearing on behalf of the respondent No.3 and Sri P.Sri Raghu Ram and Sri A.Sridhar, the learned counsel appearing on behalf of the 3rd parties, who have been impleaded and Sri CH. Vedavani, the learned Standing Counsel for the Corporation. According to the petitioner, the provision under Section 679-B of the Act is not sustainable in view of 74th Constitutional Amendment; the allegations made against her at the sole instance of respondent No.3 to remove her from oﬃce for not obeying him cannot be a basis for penal action; the Government can not act without application of mind but solely guided by respondent No.3 and the two preliminary enquiries are conducted and reports obtained are behind the back of the petitioner, hence cannot form the basis for action. The crux of the arguments set out on behalf of the petitioner is primarily three fold viz., 1) seeking to assail the constitutional validity of Section 679- B of the Hyderabad Municipal Corporation Act on the ground that the said provision is in the teeth of the objects and intent under Article 243 of the Constitution of India and the 74th Constitutional amendment; 2) the entire impugned action suﬀers from vice of mala fides as against the 3rd respondent, who being Member of Legislative Assembly and closer to higher circles in the government is responsible to initiate the proceedings; and 3) that no prima facie allegations have been made to make any attribution against the petitioner to warrant such serious action, that apart, the government has not applied its mind before initiation for any action except reproducing the contents from out of the complaints ﬁled by the corporators including the 3rd respondent. The learned Advocate General appearing on behalf of the respondent No.1 repelling the aforesaid submissions contended that since the impugned action is only a show cause one hence the writ petition is not maintainable under Article 226 of the Constitution of India when there is no plea of want of jurisdiction.. That apart, having regard to the various complaints received by the Corporators belonging to all parties, the reports available, the government has suﬃcient material on record before coming to a conclusion as to existence of a prima facie case to initiate action. And, the respondent No.3 being a local MLA is an Ex-oﬃcio member of the Council, and therefore, is entitled to make complaint along with other corporators and thus nothing can be attributed only against him personally. Sri S.R.Ashok, the learned Senior Counsel appearing on behalf of the 3rd respondent herein apart from denying the allegations of mala ﬁdes, points out various antecedents in the aﬀairs of the municipality and lapses on the part of the petitioner. Further, it was alleged that newspaper reports are not fully extracted, but only partially to suit their convenience and therefore nothing could be made out from the same. He asserted that it is only in discharge of his duty as an Ex-oﬃcio member of the Corporation he did what all he could in the interest of the institution, but not with any intention of willfulness , hence no mala fides can be attributed by the petitioner. Sri D.V.Seetharam Murthy , counsel appearing on behalf of the impleaded respondents 4 to 12 submitted that many a corporators are signatories to the complaints and therefore the petitioner cannot make any such sweeping allegation. In reply Sri S. Ramchandra Rao, the learned Senior counsel appearing on behalf of the petitioner, once again, sought to demonstrate as to how the petitioner performed as Mayor in a more eﬃcient manner. He referred to the meetings conducted by her, and he further states that having regard to the incidents, which occurred, where the petitioner was assaulted, as evident from the press reports and the photographs, there exists ample evidence to show the mala ﬁde action on the part of the respondents. Further, he reiterated that neither of the two enquiries or the reports can form any basis of charge. With this and other submissions made by the counsel and on perusal of the material, the points, which arise for consideration in this writ petition, are as follows: 1) Whether in the facts and circumstances, Section 679-B of the Hyderabad Municipal Corporation Act is violative of 243rd and 74th Constitutional Amendment apart from violative of Article 14 and 21 of the Constitution of India? and 2) Whether in the facts and circumstances, the impugned action initiated by the respondent No.1 allegedly at the instance of respondent No.3 is vitiated by mala ﬁdes and, if so, the same is sustainable? I. Constitutionality of the provision of Section 679 of the Hyderabad Municipal Corporation Act, 1955. At the outset, it is to be taken note of a crucial fact on which the present writ petition sought to rest. In the process of assailing the impugned action whereby the petitioner was given a show cause notice as to why she could not be removed from the post of Mayor of the Corporation, the petitioner seeks a Writ inter alia questioning the constitutional validity of Section 679-B of the said Act where under the Government is vested with the powers to remove a Mayor or a Deputy Mayor. For convenience sake the said provision is extracted: “679-B Government's power to remove Mayor or Deputy Mayor (1) The Government may, by notiﬁcation in the Andhra Pradesh Gazette, remove the Mayor or the Deputy Mayor who, in their opinion willfully omits or refuses to carry out or disobeys the provisions of this Act or any rules, bye-laws, regulations or lawful orders issued thereunder or abuses his position of the powers vested in him. (2) The Government shall when they propose to remove the Mayor or the Deputy Mayor under sub-section (1), give the Mayor or the Deputy Mayor concerned an opportunity for explanation, and the notiﬁcation issued under the said sub-section shall contain a statement of the reasons of the Government for the action taken. (3) Any person removed under sub-section (1) from the oﬃce of Mayor or from the oﬃce of Deputy Mayor shall not be eligible for election to either of the said oﬃces until the date on which notice of the next ordinary elections to the Corporation is published in the prescribed manner.” On a reading of the above provision, it is clear that the power amply vests with the Government for removal of the Mayor or the Deputy Mayor by issuing a notiﬁcation in the Gazette where it opines that the said incumbent willfully omits or refuses to carry out or disobeys the provisions of the Act or Rules, bye-laws, regulations or lawful orders issued thereunder or abuses his position of the powers vested in him. The sub-Section 2 thereof provides an opportunity to the concerned incumbent for explaining to the allegations made against. Further, it contemplates that the ultimate notiﬁcation issued under the said provision in the Gazette should contain the statement of reasons behind the action. Under sub-section