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2021 (10) TMI 1410 - HC - Indian LawsJurisdiction to issue SCN - Seeking quashing of SCN issued with regard to suspension of the Petitioners - seeking direction to the Respondents to permit the Petitioners to continue as Ward Members till January 2024 - quashing of SCN seeking removal of the Petitioner from the office of Sarpanch of the 2nd Respondent Gram Panchayat - quashing of SCN seeking suspension of the Petitioner from the office of Upa-Sarpanch of the 2nd Respondent Gram Panchayat. Whether the 1st Respondent is having power to issue the show cause notices under Section 37(5) of the Act to Sarpanch, Upa-Sarpanch and Ward Members? HELD THAT:- It is relevant to note that the election of Sarpanch and Ward Members of Gram Panchayat is a direct election and election to the Upa Sarpanch is indirect election. Against Upa Sarpanch, there is procedure to move No Confidence Motion - The Upa Sarpanch is second/Joint Signatory to the cheques of Gram Panchayat. The Upa Sarpanch does not have any independent power to act on behalf of the Gram Panchayat. As per Section 70(4) of the Act, all cheques against the Gram Panchayat fund shall be signed jointly by the Sarpanch and Upa Sarpanch. All orders related to the above will be issued by the Sarpanch on behalf of the Gram Panchayat. A perusal of the impugned show cause notices issued to the petitioners herein would reveal that on the complaints lodged by the 5th Respondent and the villagers of the 2nd Respondent-Gram Panchayat, the 1st Respondent had called for report from 3rd Respondent who in turn submitted his report. Basing on the said complaints and report of the 3rd Respondent, the 1st Respondent formed an opinion and issued impugned show cause notices to the Petitioners herein - there is no provision under the Act to issue show cause notices to the Upa Sarpanch and Ward Members of Gram Panchayat. Section 37 of the Act deals with the removal of the only Sarpanch but not with regard to removal of Upa Sarpanch and Ward Members. As stated above, the election of Upa Sarpanch is indirect election and there is procedure for removal. Though, prima facie, there are serious allegations against the Upa Sarpanch and Ward Members, there is no procedure prescribed under the Act, to remove them from the post of Upa Sarpanch and Ward Members by the 1st Respondent by way of initiating procedure. In RESERVE BANK OF INDIA VERSUS PEERLESS GENERAL FINANCE & INVESTMENT CO. LTD. ORS. AND VICE [1987 (1) TMI 452 - SUPREME COURT], it was held by the Apex Court that interpretation must depend on the text and context. They are the bases of interpretation. One may well say if the text is texture, context is what gives the colour. Neither can be granted. Both are important. That interpretation is best which makes the textual interpretation match the contextual. As the language of Section 37(5) is clear, the contention of learned Government Pleader that Sarpanch includes Upa-Sarpanch is not sustainable. The impugned show cause notices issued against the Ward Members and Upa-Sarpanch were issued without jurisdiction and are liable to be set aside - With regard to Sarpanch, it is relevant to note that Section 37 of the Act, deals with the procedure to remove Sarpanch. The 1st Respondent on consideration of complaints, submitted by the 5th Respondent, villagers of the 2nd Respondent-Gram Panchayat and also the report of the 3rd Respondent formed an opinion and framed specific charges against the Sarpanch of the 2nd Respondent-Gram Panchayat. Accordingly, referring to the same, he has issued show cause notice dated 06.09.2021 to the Sarpanch of the said village framing specific charges and called for explanation from him within 7 days from the date of receipt of the said show cause notice. The 1st Respondent had issued the impugned show cause notice to the Sarpanch basing on the complaint of the 5th Respondent and villagers of the 2nd Respondent Gram Panchayat and also on the report of the 3rd Respondent. Therefore, the contention of Sri. Vedula Venkataramana, learned Senior Counsel, that the 1st Respondent has to form an opinion independently without referring to the complaints and the report of the 3rd Respondent-DPO, cannot be accepted and the said contention is not sustainable - according to this Court, there is no illegality in issuing the impugned show cause notice to the Sarpanch of the villagers by the 1st Respondent. Therefore, on the said ground, the impugned show cause notice cannot be set aside. The Sarpanch, aggrieved by an order of removal to be passed by the 1st Respondent under Section and 37(5) of the Act or by an intimation under Sub Section 2 of Section 35 of the Act, within 30 days from the date of receipt of the order or as the case may be, to be intimated preferring an appeal to the Gram Panchayat Tribunal. Therefore, there is specific procedure prescribed under the Act. Thus, there is alternative and efficacious remedy available to the petitioner herein under the Act. The petitioner herein, instead of availing the same, filed the present writ petition. The impugned show cause notices dated 06.09.2021 issued by the 1st Respondent against the Petitioners/Ward Members and Upa-Sarpanch with regard to their suspension from their positions from the 2nd Respondent Gram Panchayat, is hereby set aside - Petition allowed.
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