IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SECOND DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 22934 of 2008 Between: Dr. Tadiboina Masthanamma, The Chair Person, Teali Municipal Council, Wife of Dr. T. Venkateswara Rao, aged 50 years, resident of Door No. 7-7-17, Tadiboinavari Street, Tenali, Guntur District. ..... PETITIONER AND 1 State of Andhra Pradesh, represented by its Principal Secretary, Municipal Administration and Urban Development Department, Secretariat, Hyderabad. 2 The Collector & District Magistrate, Guntur District at Guntur. 3 The District Revenue Officer, Guntur District at Guntur. .....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 a Writ, one in the nature of Writ of Mandamus or any other appropriate writ, order or direction, declaring the Notice in PROFORMA-II dt. 8-10-2008 issued by the 2nd Respondent herein as illegal, arbitrary, violative of the procedure contemplated under Sub-Sections (2) and (3) of Section 46 of A.P. Municipalities Act, 1965 and the principles of natural justice and pass Counsel for the Petitioner:MR.CH.RAVINDRA BABU Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following : THE HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY W.P.No.22934 of 2008 ORDER: This writ petition has been ﬁled by Dr.Tadiboina Masthanamma assailing the notice in Proforma-II, dated 08-10-2008 issued by the Collector and District Magistrate-second respondent. 2. The petitioner was elected as Chairman of Tenali Municipal Council on 01-10-2005 through indirect elections being candidate of Indian National Congress. 23 Councilors submitted a proposed motion for unseating the petitioner. They sent a copy of the motion to the Collector and District Magistrate, Guntur. Thereupon, the Collector and District Magistrate issued notice to the petitioner in Proforma-II informing him of the proposed motion and also ﬁxing the date as 24.10.2008 for consideration of the said motion. The petitioner ﬁled the writ petition contending that notice in Proforma-II served on her does not contain the copy of the motion proposed by the 23 Councilors. 3. When the writ petition came up for admission, the learned Government Pleader for Municipal Administration received notice on behalf of respondent No.1. With the consent of the counsel appearing for the parties, the writ petition is taken up for ﬁnal disposal at the stage of admission. 4. Only issue that calls for adjudication in this writ petition is whether the notice served in Proforma-II on the petitioner is in accordance with the provisions of Section 46 of the A.P. Municipalities Act,1965 (for short ‘the Act). 5. Heard Sri D. Prakash Reddy, learned senior counsel appearing for the petitioner, the learned Government Pleader for Municipal Administration appearing for respondent No.1 and the learned Government Pleader for Revenue appearing for respondents 2 & 3. 6. The learned senior counsel has raised two contentions, ﬁrstly notice in Proforma- II is not properly served on the petitioner, and secondly the notice in Proforma-II sent to the petitioner does not contain a copy of the motion proposed to be made by the Councilors. The learned senior counsel elaborating his arguments contends that notice in Proforma-II is stated to have served on Sri G.Hemendra Rao, who is not a family member of the petitioner and therefore, service on him cannot be construed as valid service. His further contention is that notice sent in Proforma-II does not contain copy of the proposed motion of no confidence. 7. Per contra, the learned Government Pleader for Municipal Administration submits that in Section 353 of the Act, service of document has been prescribed and service has been eﬀected in accordance with the provisions of Section 353 of the Act. For better appreciation of the contentions of the learned Government Pleader, I deem it appropriate to extract Section 353 of the Act, which reads as hereunder: Method of serving documents:- (1) When any notice, or other documents is required by this Act or by any rule, bye-law, regulation or order made under it, is to be served on or sent to any person, the service or sending thereof may be effected- (a) by giving or tendering the said document to such person, or (b) if such person is not found, by leaving such document at his last known place of abode or business or by giving or tendering the same to some adult member or servant of his family; or (c) if such person does not reside in the municipality and his address elsewhere is known to the Commissioner, by sending the same to him by post registered; or (d) if none of the means aforesaid be available, by ﬁxing the same in some conspicuous part of such place of abode or business. (2) Where the person is an owner or occupier of any building or land, it shall not be necessary to name the owner or occupier in the notice or document, and in the case of joint owners and occupiers it shall be suﬃcient to serve it on, or send it to, one of such owners or occupiers. (3) Whenever in any bill, notice, form or other document, served or sent under this Act, a period is ﬁxed within which any tax or other sum is to be paid or any work executed or anything provided, such period shall, save as otherwise provided in this Act, be calculated from the date of such service or sending.” 8. I have gone through the Photostat copy of the Proforma- II. It contains an endorsement that a copy has been served on Sri G.Hemendra Rao, since the petitioner is not stated to be at her residence. I do not see any reason to doubt the genuineness of the endorsement appearing on Proforma-II. Therefore, I am of the opinion that the service of notice in Proforma-II is in accordance with the provisions of Section 353 of the Act. 9. The Proforma-II sent to the petitioner indicates as if a copy of the proposed motion of no conﬁdence is enclosed. To the speciﬁc question put to the learned Government Pleader for Municipal Administration as to whether a copy of the proposed motion of no conﬁdence is enclosed, reply of the learned Government Pleader is that the copy of the letter addressed to the District Collector contains the signature of all the Councilors and the same has been sent to the petitioner and therefore, it amounts to substantial compliance of the provisions of Section 46 of the Act. For better appreciation I may refer the letter addressed to the District Collector by the Councilors, which reads as hereunder: “ Sir, We, the undersigned elected members of Tenali Municipal Council, Guntur District hereby give notice of our intention as required by Section 91-A of HMC Act, 1955 and Section 46 of the Andhra Pradesh Municipalities Act,1965 to make a motion expressing want of conﬁdence in Smt.Dr.T.Masthanamma, Chairperson of the said Municipal Council at a meeting to be specially convened for the purpose. T he sanctioned strength of the Municipal Council is 40 and number of Ex- Officio member is 2. A copy of the motion proposed to be made is enclosed. Signed at T enali on the day of 06-10-2008. Sl.No. Name of the Member & Ward No. Signature of the member (1) (2) (3) (1) Edara Sivaramakrishna Prasad, 1st ward Councilor (2) Sk.Kalesha Vali, 3rd ward Councilor (3)Ummalaneni Janaki Ramchandra Rao, Vice Chairman & 4t h Ward Councilor _______________________________________________________” 10. I may also refer the notice sent in Proforma-II which reads as hereunder: Sir/Madam, Whereas, a notice of intention to make a motion expressing want of conﬁdence in the Tenali, Municipal Council has been delivered to me as required under Section 91-A of HMC Act,1955 and Section 46 of Andhra Pradesh Municipalities Act, 1965. Now, therefore, under the said Act, I hereby give notice that a meeting of the Municipal Council, Tenali shall be held at the oﬃce of the Municipal Council, Tenali on 24.10.2008 at 11.00 A.M. for consideration of the said motion of no conﬁdence against the Chairperson,T enali Municipal Council. A copy of the proposed motion of no-conﬁdence is enclosed and was signed by 23 members. I have personally veriﬁed the signatures of the members of the Municipal Council, Tenali with the help of the records maintained in the oﬃce of the Municipal Council, Tenali and found to be correct. Encl: As above Place:Guntur Date:08-10-2008 Collector & District Magistrate Guntur” 11. In both notices, it is speciﬁcally stated that a copy of the motion proposed to be made is enclosed. Indisputably the said copy of the motion proposed is not sent to the petitioner. Therefore, I am of the view that Proforma-II notice sent to the petitioner is not in substantial compliance of the provisions of Section 46 of the Act. Accordingly, notice dated 08-10-2008 sent to the petitioner is set-aside reserving liberty to the District Collector-second respondent to send fresh notice in Proforma- II. 12. The writ petition is allowed at the admission stage. No order as to costs. _______________________ B.SESHASAYANA REDDY,J 22-10-2008 Note: C.C. tomorrow B/o. Stp