P RAGHAVA REDDI Vs. STATE

JUDGEMENT

(1.) As the virus 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.

(2.) The facts necessary for determination of the question raised by Mr. Choudhary viz., that Section 33 of the Act is ultra virus are these. The petitioner was elected as the president of the Panchayat Samithi Venkata-giri on 7-8-1970 for a term of five years. That election was held by secret ballot. The total membership of the Venkatagiri Gram Panchayat is 67 and that strength includes six co-opted members, of whom one is a Harijan, one Schedule tribe, two women, two general, one M. L. A., one M. L. C. and President of the Panchayat Samithi. A motion expressing want of confidence in the petitioner, who is the President of the Panchayat Samithi, was submitted to the Sub-Collector, Gudur, having jurisdiction over the Panchayat Samithi. 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 motion 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 this 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 at 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 accordance with the said resolution of the Samithi dated 3-7-1974. Mr. Choudhary, 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 in unconstitutional and ultra virus. The other argument of the learned counsel is that out of the 43 members present on that occasion respondents 2 to 5 were disqualified 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 Samithi. The election of members under Clause (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 Samithi is by secret ballot, Mr. Choudary contended that the provision in the rules relating to the passing of a motion of no confidence against a President or a vice-president by show of bands is ultra virus and unconstitutional. 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 tie 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 object 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 and the scheme of the Act, it could not have been the intention of the Legislature to defeat that very purpose and object by empowering the rule-making authority to make a provision in matters of no-confidence in the President or the Vice-President of a Panchayat Samithi that such a motion shall be put to open vote, that is to say, by show of hands. In support of his contention the learned counsel invited our attention to Constitutional Limitation by Cooley, Eighth Edition, page 1373, Chap. XVII. The learned author deals with the expression of popular will and the manner of exercising that right. Speaking of that right in his country, Cooley observed:

(3.) The only other point urged by the learned counsel, Mr. Choudary, is that respondents 2 to 5 should not be permitted to attend the meeting by the sub-collector. The learned counsel relied upon the objection petition which the petitioner filed before the sub-collector at the commencement of the meeting objecting to the participation of respondents 2 to 5 at that meeting. Whether respondents 2 to 5 had suffered disqualification or not is not a question which can be gone into by this court in a writ petition. It should be remembered that out of the total of fifty members present at the meeting on 3-7-197 forty three members voted for the motion of no-confidence moved against the petitioner. If respondents 2 to 5 had suffered any disqualification the forum for assailing that is elsewhere. We therefore, see no reason to entertain this writ petition. It is accordingly dismissed.