THE HON’BLE SRI JUSTICE NOUSHAD ALI W.P.No.13883 of 2007 Date : -02-2011 Between : Smt.Pavani .. Petitioner and The Government of Andhra Pradesh, rep. by its Secretary, Panchayat Raj Department, Secretariat, Hyderabad and Others .. Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI W.P.No.13883 of 2007 ORDER: The petitioner, who has suffered an order of removal from the Office of Sarpanch, has filed this Writ Petition challenging the orders in Appeal passed by the 1st Respondent/Government of Andhra Pradesh in G.O.Rt.No.894, dated 25-06-2007 confirming the primary orders of the 2nd Respondent viz., District Collector (Panchayatraj Wing), Mahabubnagar in Proceedings No.Ad/1508/2006-A1, dated 26-04- 2007. The brief facts are that the petitioner was elected as Sarpanch of Gattu Gram Panchayat, Gattu Mandal, Mahabubnagar District and assumed charge on 27-08-2006. On the intervening night of 27th and 28th August, 2006, an unfinished library building of the Gram Panchayat was demolished. The incident was reported in the newspapers on 29-08-2006. The Assistant Engineer (Panchayat Raj), Mandal Parishad, Gattu visited the site on 06-09-2006 and gave a complaint F.I.R.No.57 of 2006 in the Gattu Police Station. The Police, after investigation, did not find the involvement of the petitioner. However, a charge-sheet was laid against the husband of the petitioner and the Deputy Sarpanch, who were later acquitted from the charges. The 2nd Respondent served a show cause notice, dated 09.01.2007 on the petitioner alleging that the building was demolished causing a loss of Rs.75,000/-without a Resolution of the Panchayat; and therefore proposing to remove her from Office for failure to protect the building under Section 249 of the A.P. Panchayat Raj Act, 1994 (hereinafter referred to as, ‘Act’). The show cause notice to the extent relevant is as under : “The Sarpanch failed to protect the building and he himself acted irresponsibly in demolition of incomplete library building. The same was proved in the enquiry report. Show cause notice is hereby issued as it is proved that the Sarpanch has misused the power and why any action cannot be initiated against him under Section 249 of A.P.Grampanchayat Raj Act, 1994 for removing him as Sarpanch. You are directed to submit explanation within 15 days from the date of receipt of notice. If no explanation is received action will be taken as per law. Enquiry report is herewith enclosed.” The following charges were annexed to the show cause notice : 1. Smt.Pavani, Sarpanch, Gattu Grampanchayat demolished incomplete library building without there being any resolution in the meeting. 2. The letter of the Assistant Engineer, Gattu Mandal is herewith enclosed wherein it is estimated that the loss caused for damaging the building as Rs.75,000/- 3. It is the duty of the Sarpanch to protect the Government properties situated within the limits of Grampanchayat. The Sarpanch neglected to protect the Government properties. Hence, requested to submit explanation. The petitioner submitted an explanation, dated 31-01-2007 denying the charges inter alia stating that although she assumed office and took charge on 27-08-2006, the Gram Panchayat records were not handed over to her by the former Sarpanch; that due to the elections, the Village was divided into two factions – one of Congress and the other TDP; and that some unidentified anti-social elements demolished a portion of the walls. While denying that she herself demolished the building, she further stated that the building being under construction was under the control and supervision of the Mandal Assistant Engineer and it was not handed over to her along with the connected records so as to enable her to protect the building. Upon receipt of the said explanation, the 2nd Respondent again gave a final notice dated 06-03-2007 inter alia stating as follows : “Therefore, Smt.Pavani, Sarpanch Gram Panchayat, Ghattu is directed to remit the loss caused due to dismantle of newly constructed library building amounting to Rs.75,000/- in shape of Demand Draft in the name of District Collector under 100% food for work scheme, within 10 days from the date of receipt of final notice to her. If failed to remit the above amounts within the stipulated time, action will be initiated against her U/s.249(1) for removal and U/s.265 of APPR Act 1994 for recovery of the amounts.” The petitioner again submitted a detailed explanation dated 09- 04-2007 reiterating the earlier explanation and in addition, stating that the building was still in the custody of the A.E. and the records relating to the building were not handed over, therefore she was not responsible for any damage. On submitting such explanation, the 2nd Respondent passed separate orders, dated 26-04-2007 – One under Section 265 and another under Section 249. This Writ Petition is concerned only with the order passed under Section 249. The said order is as follows : “Whereas it is observed that Smt. Pavani, Sarpanch Gram Panchayat Gattu of Gattu Mandal has issued a Show Cause Notice No.A3/1508/206-A1, dated 09.01.2007 for having dismantled newly constructed Library Building in Gram Panchayat Gattu, Smt. Pavani, Sarpanch Gram Panchayat Gattu of Gattu was called upon to Show Cause Notice within (15) days from the date of receipt of this Notice as to why she should not be removed from the office of Sarpanch Gram Panchayat Gattu on the grounds that she has dismantled the newly constructed Library Building for cost of amounts willfully omitted to carryout the provisions of the AP.PR.Act. 1994, and rules issued there under by causing heavy loss of Rs.75,000/- to Government. And Whereas it is observed that Smt. Pavani, Sarpanch Gram Panchayat Gattu of Gattu Mandal has acknowledged the receipt of the Show Cause Notice on 22.01.2007, she has submitted her explanation to the Show Cause notice 31.01.2007 the explanation submitted by the Sarpanch Gram Panchayat Gattu is not convincing. Again a final notice has been issued to Smt. Pavani, Sarpanch Gram Panchayat Gattu to remit the loss caused due to dismantled newly constructed Library Building amounting to Rs.75,000/- as estimated by the Assistant Engineer (PR), Gattu in (safe) of Demand Draft in the name of District Collector under 100% Food for Work Scheme within (10) days from the date of receipt of final notice to her. Smt. Pavani, Sarpanch Gram Panchayat Gattu has received the final notice on 05.04.2007 and submitted her explanation to the final notice, which is not in convincing nature and also she has failed to remit the above said amount within the stipulated time not till to date. The cost of dismantled newly constructed Library Building as indicated in the annexure appended to this notification. Now, therefore in exercise of the powers conferred under Section 249 (1) of AP.PR.Act, 1994 read with Progs.No.2335/Pts-II/75-1, Dt. 05.09.1975 of the Commissioner, PR & RD, Hyderabad, the Collector, Mahabubnagar hereby removes Smt. Pavani from the post of Sarpanch Gram Panchayat Gattu of Gattu Mandal. These orders will come into force of after (30) days from the date of order as per the provisions laid down in Section 249 (7) of AP.PR.Act. 1994.” To the aforesaid order the following charges are annexed. “CHARGE NO.I That Smt.Pavani, Sarpanch, Gram Panchayat Gattu has dismantled the newly constructed Library Building without passing the resolution of the Gram Panchayat. CHARGE NO.II That Smt.Pavani, Sarpanch Gram Panchayat Gattu has caused loss to Government an amounting to Rs.75,000/- is estimated by the Assistant Engineer (PR), Gattu, due to dismantled the newly constructed Library Building by her. CHARGE NO.III That Smt.Pavani, Sarpanch Gram Panchayat Gattu should protect the Government Assets, but she failed to protect the Government Assets, she herself dismantled the newly constructed Library Building willful irresponsibility and negligence.” Aggrieved by the said order the petitioner preferred a revision petition to the 1st Respondent, who dismissed the same by orders in G.O.Rt.No.894, dated 25-06-2007. The petitioner has assailed the aforesaid orders in this Writ Petition. The 2nd respondent, who is vested with power under Section 249 of the Act to remove the Sarpanch from the office, is under an obligation to consider the explanation and pass a speaking order. The District Collector while exercising powers under Section 249 acts as a quasi judicial authority. The office of Sarpanch is an elective post in the Gram Panchayat, which a democratic institution. Therefore, the power to remove a person from an elective post is drastic in nature and must be exercised objectively and strictly in accordance with law. A casual exercise of power would threaten the existence of democratic institutions. In Jaswanth Sugar Mills v. Laxmichand[1] the Supreme Court while referring to an earlier judgment in Provins of Bombay v. K.S. Advani[2] which held that – “a person entrusted to do an administrative Act has often to determine the questions of fact to enable him to exercise his power. He has to consider facts and circumstances and to weigh pros and cons in his mind before he makes up his mind to exercise his power as a person exercising a judicial or quasi judicial function has to do. Both have to act in good faith. A good and valid administrative or executive act binds the subject affects his rights or imposes liability on him just as effectively as a quasi-judicial act does.” Citing the said judgment, the Apex court observed – “To make a decision or an act judicial, the following criteria must be satisfied : (1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rule; (2) it declares rights or imposes upon parties obligations affecting their civil rights; and (3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.” The Apex Court in State of Rajasthan v. Sohanlal[3] while considering the necessity for recording reasons while disposing of the petitions filed under Section 378 (3) Cr.P.C., observed that the hall mark of a judgment/order and exercise of judicial power by a judicial forum is to disclose the reasons for its decision and giving of reasons has been insisted upon as one of the fundamentals of sound administration justice delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. In the light of the principles contained in the aforesaid judgments it was incumbent upon the 2nd Respondent to have considered the aforesaid explanation of the petitioner dispassionately and passed a speaking order. On an examination of the aforesaid order read with annexure of charges and the show cause notice dated 9.01.2007, it is evident that the demolition of building is directly attributed to the petitioner. The petitioner, however, categorically denied the said allegation in her explanation, stating that she took charge only on 27.08.2006. She further stated that the building, which was under construction, was still under the control and supervision of the Mandal Assistant Engineer and not handed over to her along with the connected records. She also categorically stated that the village was divided on political lines and the demolition was an act of anti-social elements. She denied negligence attributed to her and liability to pay Rs.75,000/- towards the loss. While reiterating the same in her further explanation dated 9.04.2007, she categorically stated that since it was an unfinished building, the Mandal Assistant Engineer kept it under his control and on account of the same, he himself had lodged the police complaint. Thus, the petitioner has not only categorically denied the allegation that she was in any way responsible for the demolition, on the other hand, she has categorically contended that the responsibility solely rested upon the Mandal Assistant Engineer in whose custody the unfinished building and the records still remained. Therefore, the 2nd Respondent ought to have conducted an enquiry to find out the truth or otherwise of the facts asserted by the petitioner and thereby ascertained the jurisdictional facts necessary for invoking the provisions under Section 249 of the Act. However, a perusal of the order would show that the 2nd Respondent has not made any efforts to ascertain the facts. As noticed above, the 2nd Respondent, except stating that the explanation is not convincing, has not assigned any reasons as to why he disagreed with the explanation of the petitioner. It is well settled that the object underlying the rules of natural justice is to secure fair play in action. One of the facets of fair play is to record the reasons and pass speaking order for a decision. The order passed by the 2nd Respondent ex facie does not satisfy the test of a speaking order, thus violates the principles of natural justice. As mentioned above, the order of the 2nd Respondent was carried in revision to the 1st Respondent and the same was dismissed by means of the order dated 25-06-2007. A perusal of the said order shows that the 1st Respondent has chosen to supplant reasons for its decision. The 1st Respondent overlooked the denial of the involvement of the petitioner and the circumstances leading to the demolition, but rather found fault on the ground that the petitioner did not lodge a complaint to the Police and that on a conjuncture of connivance of the petitioner and Upa-Sarpanch. In holding so, the 1st Respondent overlooked the basic defence of the petitioner that the building and the records were still in the custody of the Assistant Engineer. Therefore, the order of the 1st Respondent too, is equally erroneous being surplusage of the order of the 2nd Respondent. As the impugned orders are faulted being non-speaking without considering the facts asserted by the petitioner, the matter deserves to be remanded for de novo consideration. Accordingly, the Writ Petition is allowed setting aside the impugned orders and the matter is remanded to the 2nd Respondent for fresh consideration and decision, in the light of the observations made above. No costs. ______________ NOUSHAD ALI, J. February, 2011. Skmr/Js [1] AIR 1963 SC 677 [2] AIR 1950 SC 222 [3] 2004(5) SCC 573