*THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY +W.P.NO. 5814 OF 2006 %24th September, 2008. #P.Rajamallu and others. APPELLANTS VS. $ The Government of A.P. Rep. by its Commissioner and Director of Municipal Administration, A.P. Hyderabad and another .....RESPONDENTS !Counsel for the Appellant :SRI G.VIDYASAGAR ^Counsel for theRespondent NO.1: G.P.FOR MUNICIPAL ADMN. < Gist: >Head Note: ? CITATIONS: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 5814 of 2006 Between: 1 P.Rajamallau, S/o.Rajaiah, 8th Ward Councilor, Yellandu Municipality, Yellandu- Khammam. 2 K.Sanjay Kumar, S/o.Siyaram, 16th Ward Councilor, R/o.H.No.4-2-13t, 14 No Basthi , Yellandu, Khammam. 3 James Anthony, S/o.William James, 18th Ward Councilor, R/o.2-4-8, Ambazar, Yellandu, Khammam. 4 Yellamandala Vasu, S/o.Venkateswarlu, 7th Ward Councilor, H.No.1-2-72, No.2 Basthi, Yellandu- Khammam District. ..... PETITIONER(S) AND 1 The Government of A.P., Rep by its Commissioner and Director of Municipal- Administration, A.P., Hyderabad. 2 Yellandu Municipality, Yellandu, Khammam District, Rep by its Municipal Commissioner. .....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 order direction or writ particularly one in the nature of writ of Mandamus or any other appropriate writ of Mandamus or any other appropriate writ declaring the notiﬁcation issued by the Commissioner, Municipal Corporation, yellandu in ROC No.C1/943/2005 dated 21-03-2006 is illegal and contrary to rule 5 of A.P.Municipal Councils/Nagar Panchayats Cooption of the Members having Special Knowledge of Experience in Municipal Administration) Rules, 1995 and beyond the powers of the secon respondent and quash the same and pass other order or orders in the interest of justice. Counsel for the Petitioner:MR.G.VIDYASAGAR Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following : THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO. 5814 OF 2006 ORDER: 1. This writ petition has been ﬁled by the petitioners who are four in number assailing the notiﬁcation dated 21-3-2006 issued by the Commissioner, Yellandu Municipality, inviting applications from the eligible persons to be co-opted as members of council. 2. The petitioners are the members of the Municipal Council of Yellandu Municipality. The Municipal Council came to be constituted and its ﬁrst meeting was held on 30th September, 2005. The Commissioner, Yellandu Municipality issued notiﬁcation on 21-3-2006 inviting applications for being co-opted as members of the Council. The writ petitioners challenged the Notiﬁcation on the ground that the Commissioner has no power to issue a Notiﬁcation after sixty days from the date of the 1st meeting of the Council appointed by the Election Authority. For better understanding the grievance of the petitioners, I deem it appropriate to refer para 7 of the writ affidavit and it reads as hereunder: “It is submitted that the Chair Person of the Municipal Council, Yellandu has addressed a letter D.O.ROC A1/1006/0, dated 8-2-2006 seeking clariﬁcation for cooption of the members having special knowledge or experience in the Municipality after the stipulated period under the Rules. The Commissioner and Director of Municipal Administration vide letter Dis.NO. 3298/06/Elec-2, dated 3-3-2006 directed to take action for cooption of the persons in accordance with the A.P. Municipality/Nagar Panchayats, Cooption of the Panchayats having special knowledge Municipal Administration) Rules 1995 as amended from time to time so as to ﬁle further legal issues in the matter. Thus, the directions of the Commissioner are to follow the Rules framed in G.O.Ms.No.146 dated 18-3-2005 for cooption of the members as submitted supra. There is no provision in the rule for cooption of the members after the expiry of 60 days. However, contrary to the rule, the second respondent Commissioner has issued notiﬁcation in ROC No. C1/943/05, dated 21-3- 2006 which was displayed in the notice board of the Municipal Council on 21-3-2006 inviting applications from the eligible persons for cooption in terms of A.P. Municipal Councils, Nagar Panchayats Cooption of the Members having special knowledge or experience in Municipal Administration) Rules, 1995 within 7 days i.e. on or before 28-3-200. The impugned notiﬁcation dated 21-3-2006 is in contravention of Rule 5 of the Rules framed in G.O.Ms.NO.146 M.A. & UD dated 18-3-2005”. 3. Rule nisi came to be issued on 23-3-2006 and an interim stay of all further proceedings pursuant to the impugned notice also came to be granted on the even date vide W.P.M.P.NO. 7418 of 2006. The 2nd Respondent Municipality ﬁled counter and moved W.V.M.P.No. 2135 of 2008 with a prayer to vacate the interim order, dated 23-3-2006 passed in W.P.M.P.No.7418 of 2006. 1st Respondent also filed counter affidavit. 4. When the vacate stay petition came up for consideration, with the consent of the counsel appearing for the parties, the writ petition is taken for final disposal. 5. Sri Sagar Trivarna has sworn to the counter aﬃdavit ﬁled on behalf of the 2nd respondent. Circumstances under which the notiﬁcation could not be issued within sixty days has been explained in paras 6 and 10 of the counter aﬃdavit, which read as here under. “It is respectfully submitted that in reply to para 6 of the aﬃdavit, I submit that the since the Commissioner was on leave, the Oﬃce Manager processed the File for co-option of the Members having special knowledge or experience in the Municipal Administration. The Chairperson instructed the staﬀ to place the ﬁle before him on 27-10-2005 and he endorsed on the ﬁle to keep L.O. till his for the instructions. Subsequently, so many times the oﬃce Manager and the F.A.C. Commissioner explained the necessity of the Notification within the stipulated period. But the Chairperson warned the above staﬀ members not to process the ﬁle till the Commissioner resumes his oﬃce for issue of Notiﬁcation. Thus the delay was happened in inviting the applications for cooption of the members. ‘10.It is respectfully submitted that in reply to para 10 of the aﬃdavit, I submit that in pursuance of the directions issued by the Commissioner & Director of Municipal Administration in their Lr.No.D.Dis.3298/2006/Elec-2, dated 3-3-2006, the Commissioner, Yellandu Municipality has issued Notiﬁcation inviting applications for cooption of members vide Notiﬁcation No. C1- 943/2005, dated 21-3-2006.”. 6. Sunil Sharma has sworn to the counter aﬃdavit ﬁled on behalf of the 1st respondent. It is stated in the counter aﬃdavit that the delay in issuing notiﬁcation was caused due to administrative reasons but not due to any bad intention. Para 3 of the counter affidavit needs to be noted and it is thus:- “In reply to para 7 of the aﬃdavit, it is a fact that the Chairperson of the Municipal Council sought a clariﬁcation from this respondent and this respondent has clariﬁed in letter L.Di.NO. 3298/06/Elections-2, dated 3-3-3006 to take immediate action for cooption of persons as per the rules so as to avoid further delay in the matter. Pursuant to the clariﬁcation issued by this respondent, the second respondent issued notiﬁcation on 21-3-2006 calling applications from the eligible persons. The allegation that the impugned notiﬁcation dated 21-3-2006 is in contravention of rule 5 of the rules framed in G.O.M.No.146 M.A. & U.D., dated 18-3-2005 is incorrect. The ﬁrst council meeting was held on 30-9-2005 and there was no regular Commissioner in the Municipality. Therefore, the ﬁle could not be processed to proceed with the elections of the Cooption of the members within 60 days. In the meanwhile, the Chairman of the Municipal Council sought a clariﬁcation from the Director of Municipal Administration. Accordingly, clariﬁcation was issued and thereafter, the second respondent issued the present notiﬁcation. The delay was occurred due to administrative reasons but not with any bad intention. By issuing notiﬁcation beyond 60 days no loss is caused to the petitioners herein. All the petitioners who approached this Hon’ble Court are elected as Ward Members. No legal right has been infringed by virtue of the notiﬁcation issued by the second respondent. The present writ petition is ﬁled with a malaﬁde intention to see that no co-opted member be participated in the council meeting”. 7. Heard learned counsel appearing for the petitioners and learned Government Pleader for Municipal Administration appearing for the 1st respondent and learned standing counsel appearing for the 2nd respondent. 8. Sri G. Vidya Sagar, learned counsel appearing for the petitioners submits that any notiﬁcation for co-option of members to the Council shall be within 60 days from the date of ﬁrst meeting of the council and as notiﬁcation impugned in the writ petition came to be issued after about six months of the date of ﬁrst meeting of the Council it is contrary to the Rule 5 of the Andhra Pradesh Municipal Councils/ Nagar Panchayath Co-option of the Members having Special Knowledge or Experience in Municipal Administration Rules, 1995 (herein after referred to as Co-option Rules, 1995). 9. Learned standing counsel appearing for the 2nd respondent submits that the delay in issuing Notiﬁcation has caused because of the post of the Commissioner being vacant for quite some time. A further submission has been made that if the persons of eminence are not co-opted, the very purpose of Rules 3 and 5 of the Co-option Rules, 1995 will be defeated. 10. I have gone through Rules 3 and 5 of the Cooption Rules, 1995. The object of the co-option is to provide assistance of the eminent personalities to the Council. Rules 3 and 5 reads as hereunder:- “3. Persons eligible for Co-option – Qualiﬁcations : - No person shall be eligible to be Co-opted as a member to the Municipal Council, unless he is:- a) a registered voter in the Electoral Roll of the Municipal Council; b) a person who held oﬃce of Chairperson/Sarpanch/Member of a Municipal Council/Gram Panchayat or a combination of these oﬃces for a total period of not less than ( five years) ; or (Subs. By G.O.Ms. No. 217 M.A.& U.D.,dated 11-4-2000) c) An advocate who has served as Municipal Standing Counsel for a term of 3 years. d) A retired Oﬃcer who has worked in the Municipality/ Municipal Corporation/Municipal Administration Department; or e) Person having special knowledge in Roads and Buildings/ Water Works/Town Planning/Public Health”. 5. Procedure for Co-option of Members: 1) The Commissioner shall within sixty 60 days from the date of ﬁrst meeting of the Council to be appointed by the Election Authority, call for applications from the eligible candidates by giving wide publicity in news papers giving seven days time for submission of applications. 2) The applications received shall be scrutinized by the Municipal Commissioner within three (3) days from the last date of receipt of applications. (3) The list of eligible applicants shall be placed before the Municipal Council at its Special meeting to be convened by the Chairperson within a fortnight from the last date of ﬁxed for receipt of applications by giving not less than seven (7) clear days notice to the elected members including Ex.Officio members: Provided that no business shall be transacted at the meeting unless there be present at least one half of the sanctioned strength of the Council including Ex.Officio members. Provided further that where members could not be co-opted in the ﬁrst two meetings for want of quorum, the members shall be co-opted in the third meeting even without quorum. 4) If within half an hour after the time appointed for the Special Meeting the quorum is not present, the meeting shall stand adjourned unless all the Members present agree to wait longer.” 11. Under Rule 5 of A.P. Municipal Councils/Nagar Panchayats Co-option of the Members having Special Knowledge or Experience in Municipal Administration Rules, 1995, there is an obligation on the part of the Commissioner to give notiﬁcation within sixty days. It does not mean that after expiry of sixty days the Commissioner shall not give notiﬁcation. I do not ﬁnd any illegality or irregularity in the notiﬁcation impugned in the writ petition. 12. Accordingly, this writ petition is dismissed. No order as to costs. _____________________________ Justice B.Seshasayana Reddy 24th September, 2008 Note: C.C. in three days L.R. Copy to be marked. B/o KM THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO. 5814 OF 2006 24th September, 2008.