@JUDGMENTTAG-ORDER
G. Rohini, J.@mdashThe Petitioner and the 4th Respondent are the duly elected members of the Mangalagiri Municipal Council. The Petitioner was subsequently elected as the Vice Chairman.
In the meeting held on 18.06.2009, vide resolution No. 452 it was resolved by the Managalagiri Municipal Council that the 4th Respondent herein, who did not attend the three consecutive meetings of the council held on 12.11.2008, 01.12.2008 (29.12.2008) and 30.01.2009 as he was sent to judicial custody in Crime Nos. 268 and 271 of 2008 on the file of Mangalagiri Town Police Station, ceased to hold office u/s 16(1)(k) of the A.P. Municipalities Act, 1965 (for short ''the Act'').
2. However, the 1st Respondent-Government of Andhra Pradesh issued a show cause notice dated 23.07.2009 calling upon the Municipal Council, Mangalagiri to show cause as to why the resolution No. 452 dated 18.06.2009 should not be cancelled u/s 59(1)(b) of the Act. On the very same day i.e. 23.07.2009 the Resolution No. 452, dated 18.06.2009 was suspended vide G.O.Ms. No. 468 dated 23.07.2009 in exercise of the powers conferred u/s 59(2) of the Act. The said order is under challenge in this writ petition. The learned Counsel for the Petitioner while submitting that as per the 1st proviso to Section 59(1) of the Act, the 1st Respondent is bound to give an opportunity to the Municipal Council to explain its stand before suspending the resolution, vehemently contended that since no such show cause notice was issued, the impugned G.O.Ms. No. 468 dated 23.07.2009 is liable to be set aside on that ground alone.
3. In the counter affidavit filed on behalf of the 1st Respondent the fact that the 4th Respondent did not attend the meetings on 12.11.2008, 29.12.2008 and 30.01.2009 has not been disputed. However, it is contended that out of the three meetings only one meeting held on 29.12.2008 was an ordinary meeting and the remaining two were emergency and urgent meetings. It is further stated that the 4th Respondent did not attend only one ordinary meeting held on 29.12.2008 and therefore, the disqualification u/s 16(1)(k) which provides that the member shall cease to hold Office if he absents himself consecutively for three ordinary meetings, did not apply to him. Thus, it is contended that the resolution No. 452 dated 18.06.2009 passed by the Municipal Council was not in accordance with the Section 16(1)(k) of the Act and therefore, the same was rightly suspended by exercising the powers conferred u/s 59(2) of the Act, for which no prior notice was required.
4. I have heard the learned Counsel for both the parties and perused the material available on record.
5. For proper appreciation of the controversy involved, it is necessary to refer to Section 16(1)(k) and Section 59 of the Act:
16. Disqualification of members
(1) Subject to the provisions of Section 17, a member shall cease to hold his office, if he-
(a)....
(b)....
(c)....
(d)....
(e)....
(f)....
(g)....
(h)....
(i)....
(j)....
(k) absents himself from the meetings of the council for a period of three consecutive months reckoned from the date of the commencement of his term of office, or of the last meeting which he attended, or of his restoration to office as member under Sub-section (3), as the case may be, or within the said period less than three ordinary meetings have been held absents himself from three consecutive ordinary meetings held after the said date: Provided that in the case of a woman member a period of not more than two months at a time shall be excluded in reckoning the period of absence aforesaid if, for reasons of physical disability due to advanced stage of pregnancy and of delivery, such member absents herself from meetings of the council after giving a written intimation to the Commissioner of the date from which she would be absent:
Provided further that no meeting from which a member absented himself shall be counted against him under this clause if notice of that meeting was not duly served on him.
Provided also that nothing in this clause shall apply to an ex-officio member.
Explanation: For the purpose of this clause, (i) ordinary meeting'' shall mean a meeting referred to in Sub-rule (1) of Rule 2 in Schedule I. (ii) where a meeting other than an ordinary meeting intervenes between one ordinary meeting and another ordinary meeting, those two ordinary meetings shall be regarded as being consecutive to each other.
59. Government''s power to cancel or suspend resolutions etc:
(1) The Government may, either suo motu or on representation of any member, the Chairperson or the Commissioner by order in writing
(i) cancel any resolution passed, order issued, or licence or permission granted; or
(ii) prohibit the doing of any act which is about to be done or is being done, in pursuance or under colour of this Act, if in their opinion-
(a) such resolution, order, licence, permission or act has not been passed, issued, granted or authorised in accordance with law; or
(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or any other enactment; or
(c) the execution of such resolution, or order, the continuance in force of such licence or permission or the doing of such act is likely to cause financial loss to municipality, danger to human life, health or safety or is likely to lead to a riot or breach of peace or is against public interest. Provided that the Government shall, before taking action under this section on any of the grounds referred to in Clauses (a) and (b), give the authority or person concerned an opportunity for explanation; Provided further that nothing in this Sub-section shall enable the Government to set aside any election which has been held.
(2) If, in the opinion of the Government, immediate action is necessary on any of the grounds referred to in Clause (c) of Sub-section (1), they may suspend the resolution, order, licence, permission or act, as the case may be, for such period as they think fit pending the exercise of the powers under Sub-section (1).
6. As could be seen, Sub-section (1) of Section 59 provides for cancellation of any resolution passed under the Act on the grounds referred to Clauses (a) to (c). The first proviso to Section 59(1) made it clear that for exercising the power of cancellation under Sub-section (1) on any of the grounds referred to in Clause (a) & (b) giving an opportunity to the authority or the person concerned to make his explanation is mandatory.
7. Under Sub-section (2), if the Government is of the opinion that immediate action is necessary on any of the grounds referred to any Section 59(1)(c), the resolution may be suspended for such period as they think fit pending exercise of the powers under Sub-section (1) of Section 59. Thus it is clear that the power of suspension u/s 59(2) is available only on the grounds referred to in Clause (c) of Section 59(1), namely the execution of the resolution is likely to cause financial loss to municipality, danger to human life, health or safety or is likely to lead to riot or breach of peace or is against public interest. Such power of suspension is not available on any of the grounds referred to Clause (a) & (b) of Section 59(1).
8. In the instant case, the Municipal Council passed resolution No. 452 dated 18.06.2009 resolving that the 4th Respondent ceased to hold Office u/s 16(1)(k) of the Act as he failed to attend three meetings of the council. According to the Respondents, Section 16(1)(k) did not attract at all as the 4th Respondent had absented for only one ordinary meeting. It is contended on behalf of the Respondents that since the disqualification u/s 16(1)(k) is attracted only where the member absented himself consecutively for three ordinary meetings, the resolution passed by the Municipal Council dated 18.06.2009 was contrary to law.
9. While pointing out that as per Section 16(3) of the Act, where a person ceases to be a councillor u/s 16(1)(k), the Commissioner shall intimate the fact in writing to such person and report the same to the council at its next meeting and if such person applies for restoration to the council on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the council may at the meeting next after the receipt of such application or suo motu restore him to the Office of member, it is further contended on behalf of the Respondents that the council had no power to pass the resolution dated 18.06.2009.
Even assuming that the resolution dated 18.06.2009 is contrary to law on any of the above grounds, it is a matter for exercising the power of cancellation under Clause (a) or (b) of Section 59(1)(ii) of the Act. In such an event as per the first proviso, an opportunity for explanation to the authority or the person concerned is mandatory.
In the present case the impugned order was not passed u/s 59(1) of the Act, but it is an order of suspension purportedly made in exercise of powers conferred u/s 59(2) of the Act. As noticed above, suspension may be ordered pending exercise of the power u/s 59(1) of the Act only where the Government is of the opinion that immediate action is necessary on any of the grounds referred to in Clause (c) of Section 59(1) of the Act. Admittedly, Clause (c) is not attracted to the facts of the present case. That being so, the power of suspension u/s 59(2) cannot be exercised. The only course open to the Government is to consider the explanation to the show cause notice dated 23.07.2009 and then pass appropriate order either canceling the resolution or otherwise.
10. For the aforesaid reasons, the impugned order of suspension dated 23.07.2009 being without jurisdiction cannot be sustained. Accordingly, the same is hereby set aside and the Writ Petition is disposed of leaving it open to the 1st Respondent to pass appropriate orders in accordance with law after considering the explanation if any, received to the show cause notice dated 23.07.2009. No costs.
