RAGHAVA REDDY Vs. STATE

JUDGEMENT

(1.) As the vires of section 33 of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, 1959 (hereinafter referred to as the Act) was questioned before our learned brother, Venkatrama Sastry, J., he directed the writ petition to be posted before a Division Bench and that is how this petition is before us. The facts necessary for determination of the question raised by Mr, Choudary Viz , that Section 33 of the Act is ultra vires are these. The petitioner was elected as the President of the Pancbayat Samithi, Veakatigiri on 7-8-1970 for a term of five years. That election was held by secret ballot. The total member-ship of the Venkatakiri Gram Panchayat is 67 and that strength includes six co-opted members, of whom one is a Harijan one Scbeduletribe, two women, two general, one M. L. A., one M. L. C. and President of the Panchayat Samithi. A motion expressing want of con fidence in the petitioner, who is the President of the Panchayat Samithi, was submitted to the Sub-Collector, Gudur having jurisdiction over the Panchayat Samithi.

(2.) He convened a meeting on 3-7-1974 for the purpose of considering the motion expressing want of confidence in the petitioner. Fifty of the members of the Samithi were present at that meeting. Forty three of the members present supported the expressing want of confidence in the petitioner and therefore that motion was passed The result was that he was removed from the office of the President of the Panchayat Samithi. It is tnis resolution which was passed by 43 members of the Panchayat Samithi resulting in his removal from the office that led to the filing of the writ petition seeking a declaration that the resolution passed that meeting is null and void. The consequential relief asked for is that respondents 2 and 6 should be directed not to act under the authority or in accord ace with the said resolution of the samithi dated 8-7-1974. Mr. Choudary, the learned Counsel appearing for the petitioner, strenuously contended that it is not open to the Presiding Officer on that occasion viz., the Sub-Collector, Gudur. to put the resolution to vote by show of hands without a secret ballot and that the scheme and object of the Act is to maintain the secrecy of the ballot and therefore the voting at that time by show of hands is unconstitutional and ultra vires. The other argument of the learned Counsel is that out of the 43 members present on that occasion respondents 2 to 5 were diqualified and therefore their participation in supporting the resolution vitiates and invalidates the resolution passed against the petitioner. To determine whether the resolution passed against the petitioner expressing want of confidence in him is null and void, it is necessary to refer to the relevant provisions of the Act and the Rules. Section 4 of the Act deals with the composition of Panchayat Samitbi. The electson of members under cl, (v) of Section 4 is to be held in the prescribed manner, that is to say, the election is to be by secret ballot. Section 7 provides for election and term of the office of the President and the Vice-President of a Panchayat Samithi and filling up of vacancies. The Rules provide that the election of the President of the Panchayat Samithi shall be by secret ballot. It is for the reason that the election of a member of the Samithi as also the election of the President of the Samathi is by secret ballot, Mr. Choudary contended, that the provision in the Rules relating to the passing of a motion of non-confidence against a President or a Vice-President by show of hands is ultra vires and uncostitutional. Rule 44 of the Rules for the motion of no-confidence provides for the voting on the motion of no-confidence in the President or the Vice-President of a Panchayat Samithi by show of hands. The votes of the members present at that meeting shall be taken by the Collector or District Collector as the case may be. This Rule, according to the learned Counsel, defeats the very purpose and the obj :ct of the Act to maintain the secrecy of the ballot. The scheme and the object of the Act and Rules, according to the learned counsel on the strength of the provisions relating to the election of the members and the President and the Vice-President of a Panchayat Samithi, is to maintain absolute secrecy of the ballot, and when that is the object nnd the scheme of the Act, it could not have been the intention of the Legislature to defeat that very purpose and object by empowring the rule-making authority to make a provision in matters of no confidence in the President or the Vice-President of a Pancbayat Samitbi that such a motion shall be put to open vote, that is to say, by show of hands. In support of bis contention the learced Counsel invited our attention to Constitutional limitation by Cocky, Eighth Edkion, page 1373. Chapter XVII.

(3.) The learned author deals with the expression of popular will and the manner of exercising that right. Speaking of that right in bis contrary, Cooley observed.