B MUTHYALU Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) These two writ petitions may be disposed of together as the point for decision is common to both. The petitioner is the same in both the writ petitions. The case of the petitioner is that he was elected a Sarpanch of the Veldanda Gram Panchayat in October, 1959, and he was a panch of the said Gram Panchayat till 29th January, 1961 ; that on 30th January, 1961, he was again elected as Sarpanch and continued to discharge the functions of the Sarpanch. It would appear that the Government issued a Memorandum of clarification on 23rd January, 1961, under which it stated that Sarpanch of the panchayat holding office of ex-qfficio membership of the Panchayat Samithis under section 4 (1) (i) shall hold the office so long as he continued to be the Sarpanch ; on the expiry of his office as panch he ceases to be the Sarpanch and with the cessation of his office as panch he also ceased to be ex-qfficio member of the Panchayat Samithi ; the fact that he is again re-elected as Sarpanch would not necessarily mean that he becomes the President of the Panchayat Samithi and under those circumstances he would have to seek re- election to the office of the President of the Panchayat Samithi. This memorandum is now sought to the attacked on the ground that the Government had no jurisdiction to issue a clarification of this kind as it was not warranted by the provisions of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act (hereinafter referred to as the Act). The prayer of the petitioner is for a writ in the nature of mandamus calling upon the respondent herein to forbear from giving effect to the aforesaid Memorandum.

(2.) The contention of the other side is that the requisite qualification to stand for election of the President of a Panchayat Samithi is that he should be a member of the Panchayat Samithi and, therefore, if under the provisions of section 4 (i) (i) of the Act read with sections 8 and 7 , the petitioner ceases to be a member of the Samithi, he could not become automatically the President of the Samithi merely because he was re-elected as Sarpanch. This would necessitate his having to stand for re-election as President. This is the only point to be decided in the case. It is, therefore, necessary to refer to the relevant provisions of the Act in order to decide as to whether the contention raised by the petitioner could be sustained. Section 4 of the Act relates to the composition of the Panchayat Samithi and here we are concerned with the Panchayat Samithi in the Telengana area. It says that in the Telengana area, every Panchayat Samithi shall consist of the Sarpanch of a panchayat and the President of every Town Committee in the block. Therefore, by virtue of this provision, the Sarpanch of every panchayat becomes ex-qfficio a member of the Samithi. Section 8 which deals with the term of office of the members of the Panchayat Samithi says that such ex-qfficio member as has been described in section 4 (1) (i) shall hold office so long as he continues to be the President or Sarpanch of the panchayat. A reading of both these sections would make it abundantly clear that the office of a member of a Panchayat Samithi could be held only so long as the person happens to be the President or Sarpanch of the Panchayat. Section 7 of the Act pertains to the election and term of office of the President and the Vice-President of a Panchayat Samithi and the procedure to be followed to fill up vacancies caused in the office of the President and Vice-President. Section 7 says that there shall be a President and Vice-President for each Panchayat Samithi who shall be elected by the members of the Panchayat Samithi from among themselves. Therefore, the President of a Panchayat Samithi is one who is elected from among the members of the Panchayat Samithi. It would, therefore, appear that a person could not be a member of the Panchayat Samithi, if he is not the Sarpanch of the Village Panchayat. If he is not a member of the Samithi he could not become the President, for, the provision relating to the election of the President envisages the person to be elected being a member of the Samithi. The argument of the learned counsel for the petitioner is that where he had been re-elected on 3oth January, 1961, after the expiry of the term on 29th January, 1961, he became a Sarpanch which entitled him to be an ex-qfficio member of the Samithi and if he was a President already, he automatically became the President and that there was no obligation to get himself re-elected. I think there is a fallacy in this argument, for the reason that the law does not envisage the Sarpanch of a Gram Panchayat becoming the President of the Samithi immediately he is re-elected despite the fact that he ceased to be a member of the Samithi in the mean time by reason of the expiry of the term of his office as Sarpanch of the Village Panchayat. The words, in my opinion, are clear and are not capable of the interpretation sought to be put upon them by the learned counsel for the petitioner. Section 4(1) (i) no doubt says that the Sarpanch would become ex-qfficio member of the Samithi. But reading that section along with section 8, it is clear that such ex-qfficio member shall hold office only so long as he is, the President or Sarpanch, which would mean that when after the term of office he ceases to be a Sarpanch, he would cease to be a member of the Samithi also and when he ceases to be a member of the Samithi, it would necessitate his having to be elected as President. I do not think that reading the provisions, they connote anything different from what has been stated above. It is not disputed that the petitioner ceased to be a Sarpanch of the Panchayat on 29th January, 1961 and the election to the Gram Panchayat was held only on the 3Oth. The provisions do not support the case of the election on a subsequent date relating back to the date when he was a Sarpanch and the President of the Samithi. That the Sarpanch is to hold office for a particular period and that he ceases to be such after that term of office cannot be disputed. In this connection, it may also be necessary to advert to an Act passed by the Legislature (Act No. XXIII of 1960) seeking to amend section 225 of the Gram Panchayat Act of 1956. Section 225 of the Gram Panchayats Act of 1956 repealed the Hyderabad Village Panchayats Act, 1951 and in this section relating to the repeal, there was a Proviso which was amended by Act XXIII of 1960. For clause (a) of the Proviso of the Gram Panchayats Act of 1956 the following was substituted :-

(3.) The learned Judge, Ramesan, J., while dealing with section 56 (4) of the Madras Local Boards Act observed that the effect of a restoration under section 56 (4) is not as if the member never lost his office. Therefore, where a member of a Taluk Board, who was also the President of a Board, loses his membership and consequently his Presidentship also, but if the membership is restored subsequently, it does not confer on him the Presidentship also. I am in respectful agreement with these observations of the learned Judge. It may also be necessary to refer to a writ petition which came before a Bench of this Court, wherein the same contention was raised (W.P. No. 446 of 1961) but the petition was dismissed in limine and did not find favour with the learned Judges constituting the Bench. Learned counsel for the petitioner tried to impress upon the Court that with regard to the office of the member of the Zilla Parishad the Government had issued a similar clarification memorandum, dated 11 th March, 1961 wherein they sought to clarify the position by saying that although under section 36 (3) (vii) it is a necessary qualification that the person elected by the Presidents of Panchayats and Sarpanchas of Gram Panchayats should be from among themselves and it would amount to this that if such person ceases to be a President of a Panchayat or a Sarpanch he should cease to be a member of the Zilla Parishad. As the law does not say in so many words, the Government have decided to give the benefit of doubt to the members now in office and would be affected by the application of the view mentioned above. It is not necessary to decide the question on analogical principles, for, the relevant sections pertaining to the case in question, viz., sections 4 (1) (i), 8 and 7 are clear that once he ceased to be a Sarpanch and as such not a member of the Samithi, he could not be the President of the Samithi except by a re-election. There is no other point to be considered. These two writ petitions are dismissed with costs. Advocate's fee Rs. 100 in each, one set for both counsel. Inasmuch as the writ petitions have been disposed of, the stay orders passed in these writ petitions are vacated.