SHAIK MASTANVALI Vs. CORRESPONDENT

JUDGEMENT

(1.) This writ appeal is preferred by the appellant herein, who is not a party to the order impugned in this writ appeal, by seeking leave of the Court.

(2.) The writ appeal is directed against the order of the learned single Judge dated 12.4.2002 passed in Writ Petition No.1674 of 2002. The above writ petition was filed by respondents 1 to 12 herein who are the Councillors of Miryalaguda Municipality. In the writ petition, the action of the Revenue Divisional Officer, Miryalaguda, the 13th respondent herein, terminating the meeting fixed on 29.12.2001 was assailed as illegal, arbitrary, capricious and against the procedure laid down under sub-sections (3), (4), and (5) of Section 46 of the A.P.Municipalities Act, 1965 (for short "the Act") and for consequential directions to the official respondents to conduct the meeting of 'no confidence' on the motion moved by the writ petitioners and others. The appellant herein is the Vice-Chairman of the Miryalaguda Municipality against whom the above no confidence motion was moved. Quite curiously, the petitioners did not implead the appellant as a party-respondent though they assailed the validity of the order of the 13th respondent terminating the no confidence proceedings initiated against the appellant herein. Since the appellant was not a party to the writ petition, quite understandably this serious lapse on the part of the writ petitioners was not brought to the notice of the learned single Judge. Therefore, the learned single Judge proceeded to consider the contentions raised by the writ petitioners, and having opined that the notice served on the Councillors did not give three clear days' time, found fault with the action of the 13th respondent in terminating the proceedings. The learned Judge held that the issuance of three clear days' notice contemplated under sub-section (5) of Section 46 of the Act is mandatory and since the 13th respondent did not adhere to that mandatory requirement, the impugned order could not be sustained. So opining, the learned Judge has allowed the writ petition and set aside the order of the 13th respondent dated 29.12.2001 terminating the no confidence proceedings initiated against the appellant herein.

(3.) The appellant, being aggrieved by the order of the learned single Judge, has preferred this writ appeal. Sri Raghuveer Reddy, learned Counsel for the appellant pressed mainly two contentions before us while assailing the validity of the order of the learned single Judge.The learned Counsel contended that the order of the learned single Judge cannot be sustained in law because in the absence of the writ appellant the learned Judge ought not to have proceeded to decide the merits of the matter and ought to have dismissed the writ petition in limini for want of joinder of proper and necessary parties. Sri Reddy contended that the three clear days' notice contemplated under sub-section (5) of Section 46 of the Act is only directory and not mandatory and in support of that plea he could place certain authorities of the Supreme Court as well as this Court before us.