THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.25461 OF 2009 DATED JULY, 2010 BETWEEN M.Kavitha … Petitioner And The Government of Andhra Pradesh, Rep. by its Principal Secretary, Panchayat Raj Department, Secretariat, Hyderabad. And Others. THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.25461 OF 2009 O R D E R By proceedings dated 11.11.2009 the Collector (Panchayat Wing), Karimangar, suspended the petitioner Sarpanch by exercising powers under Section 249(6) of the Andhra Pradesh Panchayat Raj Act, 1994. Assailing the same, the present writ petition was filed and a consequential direction was sought to the respondent authorities not to interfere with the peaceful and lawful functioning of the petitioner in office without following the due process of law. By order dated 26.11.2009, this Court granted interim suspension of the impugned proceedings for a period of two weeks which was extended from time to time upto 18.03.2010. As there was no further extension beyond the said date, the interim order expired. However, it is stated by the learned counsel for the petitioner that the respondent authorities did not give effect to the impugned proceedings even thereafter. The petitioner was elected as the Sarpanch of Tadicherla Gram Panchayat, Malharrao Mandal, Karimnagar District, in the year 2006. The Collector (Panchayat Wing), Karimangar, issued notice dated 10.09.2009 to the petitioner under Section 249(6) of the Andhra Pradesh Panchayat Raj Act, 1994 (for brevity, ‘the Act of 1994’) to show cause as to why she should not be suspended from the post of Sarpanch owing to the irregularities alleged against her. The petitioner submitted her explanation dated 29.09.2009. Thereupon, the impugned proceedings dated 11.11.2009 were issued effecting suspension of the petitioner from the post of Sarpanch for a period of three months. It is the case of the petitioner that the said action was politically motivated and is completely bereft of application of mind as is evident from the fact that the impugned proceedings refer to the Show Cause Notice dated 13.07.2009 issued by the District Panchayat Officer, Karimnagar, relating to suspension of her money drawing powers and not to the Show Cause Notice dated 10.09.2009. The Collector (Panchayat Wing), Karimnagar, in his counter stated that basing upon the allegation of misuse of Gram Panchayat funds by the petitioner Sarpanch, the Divisional Panchayat Officer, Peddapally, was asked to enquire into the same. By report dated 04.07.2009 the said officer stated that the allegation was well founded. Accordingly, a Show Cause Notice was issued to the petitioner duly enclosing a copy of the enquiry report under the proceedings of the Collector (Panchayat Wing), Karimnagar, bearing No.A6/2635/09- Pan.1 dated 13.07.2009. It is stated that after receipt of the petitioner’s explanation the same was sent to the Divisional Panchayat Officer, Peddapally, for further examination with reference to the records of the Gram Panchayat. Thereupon, the Divisional Panchayat Officer, Peddapally, submitted a detailed report vide letter dated 04.11.2009 stating that the petitioner Sarpanch had misused the Gram Panchayat Funds against the norms. Basing upon this report action was initiated under Section 249(6) of the Act of 1994 for suspending the petitioner Sarpanch and culminated in the impugned proceedings dated 11.11.2009. The Collector (Panchayat Wing), Karimnagar, further sought to justify the order of suspension on merits. Respondents 5 to 13, being the Upa-Sarpanch and Ward Members of Tadicherla Gram Panchayat, who got themselves impleaded in the writ petition, filed a vacate stay application seeking to justify the action taken by the authorities against the petitioner Sarpanch. These respondents sought to support the allegations levelled against the petitioner Sarpanch with regard to the various irregularities said to have been committed by her. They denied the petitioner’s allegation that the impugned proceedings were passed without application of mind. They complained that the petitioner is working to the detriment of the interest of the general public and sought vacation of the interim orders granted by this Court. Heard Sri Mummaneni Srinivasa Rao, learned counsel for the petitioner, the learned Assistant Government Pleader for Panchayat Raj for the State and Sri A.Prabhakar Rao, learned counsel for Respondents 5 to 13. Sri Mummaneni Srinivasa Rao, learned counsel, placing reliance on case law, contended that the subject exercise of power by the authorities under Section 249(6) of the Act of 1994 was opposed to the scheme of the said provision and was therefore unsustainable. He also sought to assail his client’s suspension on merits. Refuting this contention, the learned Assistant Government Pleader for Panchayat Raj and Sri A.Prabhakar Rao, learned counsel, argued that Section 249(6) of the Act of 1994 confers an independent power upon the authorities to suspend a Sarpanch for the reasons mentioned therein. They therefore asserted that it was incorrect to state that the exercise undertaken in the instant case was opposed to the intendment of the provision. Section 249 of the Act of 1994 to the extent that it is relevant reads as under: “249. Powers of Government to remove Sarpanch, President or Chairperson etc. (1) If in the opinion of the District Collector the Sarpanch or the Upa-Sarpanch and in the opinion of the Government the President or the Vice-President or as the case may be, the Chairperson or the Vice- Chairperson, (i) willfully omitted or refused to carry out the orders of the Government for the proper working of the concerned local body; or (ii) abused his position or the powers vested in him; or (iii) is guilty of misconduct in the discharge of his duties; or (iv) persistently defaulted in the performance of his functions and duties entrusted to him under the Act to the detriment of the functioning of the concerned local body or has become incapable of such performance: The Collector or as the case may be, the Government, may remove such Sarpanch or Upa- Sarpanch, President or Vice-President or as the case may be the Chairperson or the Vice-Chairperson, after giving him an opportunity for explanation. Provided that the proceedings initiated under this sub-section may be continued notwithstanding the fact that the Sarpanch or Upa-Sarpanch, President or Vice-President, or as the case may be, the Chairperson or Vice-Chairperson ceased to hold office by resignation or otherwise and shall be concluded within two years from the date of such cessation and where on such conclusion the authority competent to remove him, records a finding after giving an opportunity of making a representation to the person concerned that the charge or charges proved against him are sufficient for his removal, then the provision of sub-section (3) shall apply to the person against whom such finding is recorded, (2) … (3) … (4) … (5) … (6) If the District Collector is of the opinion that a Sarpanch or a Upa-Sarpanch or any member of a Gram Panchayat or the Government are of the opinion that any President or Vice-President or the Chairperson or Vice-Chairperson or any member of a Mandal Parishad or Zilla Parishad wilfully omitted or refused to carry out the orders of Government for the proper working of the concerned local body or abused his position or the powers vested in him, and that the further continuance of such person in office would be detrimental to the interests of the concerned local body or the inhabitants of the village, Mandal or District, the District Collector or as the case may be, Government may, by order, suspend such Sarpanch or Upa- Sarpanch or President or Vice-President or as the case may be, the Chairperson or Vice-Chairperson or member from office for a period not exceeding three months, pending investigation into the said charges and action thereon under the foregoing provisions of this section: Provided that no order under this sub-section shall be passed unless the person concerned has had an opportunity of making a representation against the action proposed: Provided further that it shall be competent for the Government to extend, from time to time, the period of suspension for such further period not exceeding three months, so however that the total period of suspension shall not exceed six months: Provided also that a person suspended under this sub-section shall not be entitled to exercise the powers and perform the functions attached to his office and shall not be entitled to attend the meetings of the concerned local body except a meeting held for the consideration of a no-confidence motion. (7) …” A bare reading of the aforestated provision lends itself to the interpretation that the District Collector may remove a Sarpanch/Upa- Sarpanch from office if one of the four eventualities mentioned in sub- section (1) is fulfilled. Such removal is to be effected after giving the Sarpanch/Upa-Sarpanch an opportunity to offer his/her explanation. Under Section 249(6), if the District Collector opines that the Sarpanch/Upa-Sarpanch omitted or refused to carry out Government orders or abused his/her position or the powers vested in him/her and the further continuance of such person in office would be detrimental to the interests of the concerned local body or the Village, the District Collector is empowered to suspend such Sarpanch/Upa-Sarpanch from office for a period of not more than three months pending investigation into the said charges and action thereon under the foregoing provisions of the Section. Such suspension is to be preceded by an opportunity to the person concerned to make a representation against the proposed suspension. Under the second proviso, the suspension can be extended by the Government from time to time subject to the condition that the total period of suspension should not exceed six months. It may be noticed that the two conditionalities mentioned in Section 249(6) for placing a Sarpanch/Upa-Sarpanch under suspension are identical to two out of the four grounds for removal enumerated in Section 249(1). Other than fulfilment of such a conditionality, the District Collector should also be of the opinion that further continuance of such person as a Sarpanch/Upa-Sarpanch would be detrimental to the interests of the concerned local body or the inhabitants of the village. Therefore, the power of suspension under Section 249(6) is only by way of an interim measure pending the exercise of further action for removal of the Sarpanch/Upa-Sarpanch from office. This is manifest from the concluding portion of Section 249(6): “ … suspend such Sarpanch or Upasarpanch…. from office for a period not exceeding three months, pending investigation into the said charges and action thereon under the foregoing provisions of this section.” (emphasis added) The contention advanced by the State and the other respondents that this provision stands by itself and confers an independent power upon the authorities to resort to suspension of the Sarpanch/Upa-Sarpanch without any relation to Section 249(1) of the Act of 1994 cannot be countenanced. Precedential law also speaks against such construction. The view taken by a learned Judge of this Court in SMT.B.SHASIKALA V/s. THE DISTRICT COLLECTOR (PANCHAYAT WING), KARIMNAGAR DISTRICT, KARIMNAGAR[1], while dealing with this aspect is as under: “The 1st respondent is no doubt vested with the power to place a Sarpanch under suspension. That however can be only as a measure pending enquiry or investigation into the charges framed under Section 249(1) of the Act. The record does not disclose that the 1st respondent has framed any charges under Section 249(1) of the Act or issued show cause notice. The power under Section 249(6) of the Act cannot be exercised independently.” In YERNENI KUSUMA V/s. GOVERNMENT OF A.P. REP. BY ITS SECRETARY, PANCHAYAT RAJ, SECRETARIAT, HYDERABAD[2] another learned Judge of this Court considered the interplay between sub-sections (1) to (6) of Section 249 and held: “… Therefore, on a true construction of Section 249(1) and Section 249(6), the conclusion is irresistible that unless and until the action is contemplated under Section 249(1) and (4) and investigation is launched towards that goal, the exercise of power under Section 249(6) is not warranted. …” In the present case, though the petitioner was placed under suspension on 11.11.2009 and this Court did not interdict further proceedings being initiated as contemplated under Section 249(6), by investigating the charges against the petitioner and commencing action under Section 249(1), no further action was taken. The authorities proceeded on the assumption that the power exercised under Section 249(6) was an independent one whereby they could suspend the petitioner without reference to any further action under Section 249(1) of the Act of 1994. This approach is not in keeping with the scheme of the provision. The Writ Petition is accordingly allowed setting aside the order dated 11.11.2009 passed by the District Collector (Panchayat Wing), Karimnagar, suspending the petitioner Sarpanch for a period of three months. This, however, would not preclude the authorities from initiating action afresh against the petitioner, if the situation so warrants, in accordance with the procedure laid down under Section 249 of the Act of 1994. In the circumstances of the case, there shall be no order as to costs. -------------------------- SANJAY KUMAR,J ______JULY, 2010 PGS [1] W.P.NO.24320 OF 2009, DT.09.02.2010 [2] W.P.NO.27009 OF 2009, DT.29.04.2010