G VENKATESAM Vs. COLLECTOR MEDAK

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India seeking the issue of a writ of certiorari calling for the concerned records from the respondents and quash the notice dated 2nd February, 1966. The petitioner is a Sarpanch of the Gram Panchayat, Sivampet. The Collector issued a notice dated 2nd February, 1966 informing him that since he had failed to hold the meetings of the Gram Panchayat consecutively for a period of three months during the period 24th October, 1964 to 25th January, 1965, under section 25 (2) of the Andhra Pradesh Gram Panchayat Act, 1964, hereinafter called the Act he ceased to be a Sarpanch of the Sivampet Gram Panchayat with effect from 24th January, 1965. The Collector therefore directed him to hand over complete charge of the office of the Sarpanch to the Upa-Sarpanch immediately and to intimate the fact to his office. It is this notice which is impugned in this writ petition. A preliminary objection is taken by Smt. Ramaseshamma, the learned Counsel for the third respondent, that the petitioner has an alternative remedy under section 50 of the Act without availing which he cannot file a writ petition in this Court. She placed reliance in support of this contention on a Bench decision of this Court in W.A. No. 36 of 1966. Under section 50 of the Act, the Commissioner may by notification and with effect from the date to be specified therein remove any Sarpanch who in his opinion has wilfully omitted or refused to carry out or disobeyed the provisions of the Act or the rules made thereunder. It cannot be in doubt that if a Sarpanch fails to discharge his duty which section 25 of the Act casts on him to convene meetings regularly with the result that no meeting is held in a consecutive period of three months, he shall with effect from the date of expiration of the period of three months cease to be the Sarpanch or as the case may be, ceased to exercise the powers and perform the functions of a Sarpanch unless such cessation has otherwise occurred before that date and for a period of one year from such date he shall not be eligible to be elected as Sarpanch or to exercise the powers and perform the functions of the Sarpanch. It is true that it is by the force of law that a Sarpanch who has contravened the said provision ceases to be a Sarpanch and is visited with the penalty mentioned in the said sub-section. Admittedly, no machinery is provided to enquire into the allegations, if made, that he has not contravened section 25 (2). It is of course expected of a Sarpanch who has ceased to be a Sarpanch to hand over charge to the Upa-Sarpanch immediately, but it is only in a case where the Sarpanch admits that he has so ceased to be a Sarpanch because of the omission on his part to call consecutive meetings as mentioned in that section. In case he disputes the fact that he has ceased to be a Sarpanch, then the question naturally arises as to where this can be enquired into. In such a case where the Sarpanch disputes his ceasing to be the Sarpanch he would naturally like to continue as Sarpanch and normally he does so. It is only in such cases that the Commissioner issues notice to him for his removal and the notice in question is undoubtedly such a notice although the word ' removal' is not used in the notice. Except section 50 of the Act there is no other section which authorises the commissioner to issue notice asking the Sarpanch to hand over charge to the Upa-Sarpanch after vacating his office. The impugned notice therefore is issued by the Commissioner only in the exercise of his powers under section 50 of the Act. It is true that the Commissioner instead of issuing a notice to show cause as to why the order of removal should not be passed has issued the notice. It is only after giving the Sarpanch an opportunity of explanation that the Commissioner can pass the order of removal under sub-section (1) of section 50. I have no doubt that in such a case it is open to the petitioner to explain to the Commissioner as to why he feels that he has not ceased to be a Sarpanch and the Commissioner is bound to decide that question under section 50 and has to give his reasons for the conclusion which he may thereafter reach. It must be remembered that against such decision of the Commissioner, sub-section (4) of section 50 provides an appeal to the Government.

(2.) Although the Commissioner therefore in the impugned notice has not called for the explanation from the petitioner, the Sarpanch, yet the impugned notice would be deemed to be a notice only under section 50 of the Act calling upon the Sarpanch to explain as to why he should not be removed because of the fact that he has ceased to be a Sarpanch on the ground of his omission to call meetings consecutively for three months as required under section 25 of the Act. This notice therefore is not a final order of removal under section 50. Once it is understood that it is section 50 which applies under which the Commissioner can ask the Sarpanch to vacate the office and hand over charge and if it is borne in mind that the Commissioner cannot pass the order of removal without affording a reasonable opportunity to the Sarpanch, then it presents no difficulty in reaching the conclusion that the impugned notice is not the final order of any quasi-judicial authority, but is merely a notice asking for the explanation of the Sarpanch. What must follow from this is that the petitioner cannot come to this Court without approaching the Commissioner under section 50 and explaining as to how and why he has not ceased to be the Sarpanch and I have no reason to feel that the Commissioner will not give him hearing which he is obliged to give and pass a reasoned order as required under sub-section (3) of section 50.

(3.) It is now firmly settled that whenever the Act provides special remedies the High Court should be slow in encouraging the petitioners to directly approach this Court under Article 226 of the Constitution without exhausting the remedies available under the special Act. I am therefore satisfied that the preliminary objection is right and justified and that the petitioner should approach the Commissioner before he invokes the extraordinary jurisdiction of this Court and exhaust the remedies available to him under the Act. It was however contended before me that it is doubtful whether the Collector has been delegated powers of the Commissioner for purpose of section 50. It is open to the petitioner to raise this contention also before the Collector, if he is satisfied that there is no such delegation. For the aforesaid reasons, I would dismiss this writ petition. In the circumstances, however, I make no order as to costs. Petition dismissed.