THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION No.27816 of 2008 DATE: .12.2009 Between: Kura laxmaiah and another … Petitioners And The District Collector, Nalgonda, and others … Respondents THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION No.27816 of 2008 ORDER: 1st petitioner is the Block Congress President, Bhongir, Nalgonda District, and 2nd petitioner is the former Chairperson of Bhongir Municipal Council. More than one half of the total members of the Municipal Council issued a notice to the District Collector, Nalgonda-1st respondent, with a request to convene a meeting of the Municipal Council to take up a motion of no confidence against the 2nd petitioner. It is stated that respondents 5 to 9 were elected as members from Congress Party. It is alleged that though a whip was issued, on behalf of the Congress party, to vote against the motion of no confidence against the 2nd petitioner, respondents 5 to 9 have violated the whip and voted in favour of the no confidence motion. The petitioners approached the District Collector, Nalgonda-1st respondent, with a request to declare that respondents 5 to 9 have ceased to be members of the Municipal Council, since they have violated the party whip. The 1st respondent issued notices to respondents 5 to 9 and conducted a detailed enquiry. Through an order dated 17.12.2008, he rejected the request of the petitioners, on the ground that respondents 5 to 9 were not served with the notices of the party whip. The same is challenged in this writ petition. The 1st respondent filed a counter-affidavit denying the allegations made in the writ petition. He stated that the procedure prescribed under Section 353 of the Act was taken note of, and since it is emerged that notices were not served, as provided for under that section, respondents 5 to 9 cannot be said to have ceased to be members. The petitioners filed a reply to the said affidavit narrating the details as to service of notice. Heard Sri M.V. Raja Ram, learned counsel for the petitioners, learned Government Pleader for Municipal Administration, and Sri B. Vijaysen Reddy, learned counsel for the 7th respondent. Learned counsel for the petitioners submits that the whip was served, in accordance with the procedure prescribed under G.O.Ms.No.835, dated 3.12.2008, and still the 1st respondent took a different view. The learned counsel further submits that respondents 5 to 9 have deliberately refused to receive the registered post sent to them and the same would constitute valid notice. Alternatively, he contends that when the whip was declared in the meeting itself, no further notice is needed. Section 46 of the Act prescribes the procedure to be followed in the context of tabling of motion of no confidence against chairperson or vice-chairperson. Issuance of party whip is indirectly mentioned in that Section. The consequences for disobedience of the party whip are mentioned in the proviso to Sub-section 4 of Section 46 of the Act. It reads as under: “Provided that a member voting under this sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy.” If it emerges that respondents 5 to 9 have disobeyed the party whip, the consequences provided for under Section 46 of the Act, must ensue. Much would depend upon the question as to whether respondents 5 to 9 have been served with the party whip. Section 353 of the Act prescribes the procedure to serve documents or notices required under the Act. The provision reads as under: “(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.” The Government issued G.O.Ms.No.835, dated 03.12.2008, prescribing the procedure for service of whip. A whip would become binding and operational, only when it is served. On receiving representations from the petitioners, the 1st respondent issued notices to respondents 5 to 9. The record discloses that though the party whip was sent to respondents 5 to 9, through registered post, it was not served, on the ground that the addressees were not found for seven days consecutively. The petitioners placed reliance upon the rules contained in G.O.Ms.No.835 dated 03.12.2008. The procedure for service of whip under it, is almost similar to the one under the procedure prescribed under Section 353 of the Act. Once it is emerged that the whip was not served, respondents 5 to 9 cannot be declared to have ceased to be members of the Municipal Council. Reliance is placed upon the judgment of this Court i n Akula Ganga Raju and another Vs. Presiding Officer, Yeleswaram Mandal Praja Parishad and others[1], that was a case in which there was no dispute as to service of whip. Therefore, the ratio enunciated in the above judgment cannot be applied to the facts of the case on hand. Accordingly, the writ petition is dismissed. There shall be no order as to costs. ___________________ L.NARASIMHA REDDY, J December, 2009 CBS HON’BLE SRI JUSTICE L. NARASIMHA REDDY W.P.No.27816 of 2008 December, 2009 CBS [1] 2003 (5) ALD 619