AI Structured Summary
Not yet generated for this judgment
Judgment
D.S. Tewatia, J.—Jee Ram, petitioner, was elected Sarpanch to the Gram Panchayat, Dhanuda, in the year 1971. Nine Panches including the petitioner constituted the said Panchayat. Five of the Panches, who are arrayed as respondents 4 to 8, obtained approval of the Director of Panchayats (respondent No. 1) in terms of section 9 (2) of the Punjab Gram Panchayat Act, 1932 (hereinafter referred to as the Act) for convening the extraordinary general meeting of the Panchayat to take up for consideration a motion of no-confidence against the Sarpanch, i.e., the petitioner. On September 26, 1973, the said five Panches, i.e., respondents 4 to 8 convened the meeting of the Panchayat in terms of section 14 sub-section (2) of the Act. The meeting was presided over by one of the respondents and the resolution expressing no-confidence in the petitioner was passed with a majority of 5:4. That resolution was transmitted to the Director of Panchayats, respondant No. 1, who vide his order dated December 10, 1973 (Annexure P. 1), accorded approval thereto and directed the holding of fresh election of the Sarpanch of the said Gram Panchayat on March 6, 1974. The petitioner on coming to know of the said order filed a civil suit and obtained a temporary injunction on February 7, 1974. That injunction was vacated by the Court on February 21, 1974 and thereafter 6th of March 1974, was fixed for holding election to the office of Sarpanch. This led to the filing of the present petition on March 5, 1974. The Court declined to grant injunction against the holding of the meeting scheduled to take place on March 6, 1974. In the said election, the petitioner tried his luck but was defeated by 5 : 4 votes.
The sole question that falls for determination is as to whether the meeting in which resolution expressing no-confidence in the petitioner was passed, was legally convened or not.
However, before proceeding with the consideration of the question posed, I may at this stage, take notice of preliminary objections raised by Mr. Sarin, learned counsel for the respondents.
The learned counsel basing himself on two D.B. decisions of this Court--one reported as Attar Singh and others v. State of Haryana (sic), and the other Ram Nath v. Ramesh, 1972 98 PLR 619 urged that the petitioner having taken chance in the fresh election and having failed therein is estopped from coming to this Court and pose a challenge to the fresh election in which respondent No. 7 was declared elected as a Sarpanch of the said Gram Panchayat. The second preliminary objection taken by him is to the effect that the civil suit filed by the petitioner having been dismissed by the civil Court on April 10, 1974, the order passed there in would operate, as res judicata to the present proceedings.
The third preliminary objection pertains to the laches and the fourth pertains to the non-exhaustion, by the petitioner, of the alternative remedy of election petition.
I am afraid, there is no merit in any of the preliminary objections raised by the learned counsel for the respondents.
Commuting to the first preliminary objection, it must be observed that while there is no dispute with the correctness of the principle enunciated in the said two decisions on which the learned counsel has placed reliance, the ratio of the said decisions, however, is clearly distinguishable and is not applicable to the facts of the present case. In the present case, the petitioner has not as such challenged the election of respondent No. 7 as Sarpanch as a result of the meeting held on March 6, 1974, and in which meeting the petitioner had participated. His challenge is to the legality of the meeting held on September 26, 1973 in which a motion of no-confidence was passed against him and which later on was approved by respondent No. 1 by his order dated December 10, 1973 (Exhibit P. 1). Once it is held that the meeting in which the motion of no-confidence was passed against the petitioner was illegal, then the consequential order of respondent No. 1 as also the election of respondent No. 7 would automatically be rendered illegal. I, therefore, hold that the two decisions in question are not even remotely applicable to the facts of the case and hence the question of the petitioner being estopped from approaching this Court does not arise.
As regards the decision in the civil suit in question operating as res judicata, suffice it to say, that the civil Court did not adjudicate upon the issues posed in this petition. The petitioner''s counsel has stated at the bar that the suit was dismissed for non-prosecution. That would clearly show that in the civil suit the Court had not adjudicated upon the question involved here. Hence the question of the dismissal of the said suit operating as res judicata does not arise.
The third objection raised by the learned counsel for the respondents is mentioned merely to be rejected. There are no laches. The Director of Panchayats accorded his approval to the resolution of no-confidence on December 10, 1973, and soon thereafter on coming to know of the approval having been granted by the Director, the petitioner approached the civil Court and thereafter fried the present writ petition.
The fourth objection merits no better fate for the petitioner has not as such challenged the election of respondent No. 7. Whether the election of respondent No. 7 as Sarpanch of the Gram Panchayat is to stay or not is dependent on the decision of the question as to whether the removal of the petitioner from Sarpanchship was legal or not. Once it is held that the removal of the petitioner was illegal, then rest of the objections have to give way as a consequence of the said finding and the election of respondent No. 7 as Sarpanch is rendered automatically void ab initio.
Now coming to the contention advanced on behalf of the petitioner, reference may first be invited to the provisions of section 9 and section 14 which are in the following terms : --
(1) Before entering upon the duties of their office, the Sarpanch and Panches shall take an oath in the form specified in Schedule IV.
(2) She Sarpanch and Panches shall hold (sic) for a period of five years :
Provided that an outgoing Sarpanch or Panch shall unless the Government otherewise directs, continue to hold his office, until his successor has taken the oath :
Provided further that subject to the approval of the Director, the Sarpanch may be removed from his office by a majority of the voles of the Panches constituting the Gran Panchayat at its extraordinary general metting held with previous permission of the Director :
Provided further that no such meeting shall be convened before the expiry of six months from the date on which the Sarpanch took oath of his office and, if the Sarpanch is not removed at such meeting, no further meeting shall be convened for considering a similar proposal against the Sarpanch unless a period of at least six months intervenes between the last such meeting and the date on which such further meeting is convened :
Provided further that subject to the approval of the Director, a Panch may be removed from his office by a two-third majority of the votes of the members of the Sabha present at its extraordinary general meeting held with the previous permission of the Director and attended by not less than fifty per centum of its members.
(1) The meeting of the Gram Panchayat shall be public and shall be held at least once a month at some place, within the Gram Panchayat area for which it is established, whenever called by the Sarpanch, or during the vacancy of his office, by the Gram Sachiv :
Provided that the Sarpanch, when required in writing by a majority of the Panches to call a meeting, shall do so within three days, failing which these Panches, shall with the previous approval of the prescribed authority, be entitled to call a meeting after giving a week''s notice to the Sarpanch and the other Panches.
(2) At every meeting of a Gram Panchayat the Sarpanch, if present, or, in his absence or during the vacancy of his office, such one of their number as the Panches present may elect, shall preside as chairman.
(3) A majority of the Panches shall form a quorum :
Provided that if there is no quorum, the Chairman shall adjourn the meeting to such other day as he may think fit, and the businees which would have been brought before the original meeting if there had been a quorum shall be brought before, and transacted at, the adjuorned meeting the quorum for such adjourned meeting shall be thirty-three per centum of the Panches.
(4) The decisions of the Panchayat shall be by majority and when the voting is equal, the Chairman shall have an additional or casting vote.
From the above, it is to be observed that in the Act there is no procedure for summoning and conducting of the extraordinary general meeting for the purpose envisaged by the provisions of the abovesaid sections of the Act. Similarly, there is no such provision in the relevant Rules. In the absence of any express provisions to that effect, it is to be seen as to whether the meeting convened in the manner by the the five Panches is valid or not The matter is not res Integra. Such a question arosse before Tuli, J., in a case reported in Dharam Singh v. The State of Haryana. 1973 PLJ 554, Tuli J., held that in the absence of any specific provision, the principle discernible in section 21 of the General Clauses Act, 1897 can be resorted to, that is, the meeting for the removal of a Sarpanch by passing a no-confidence resolution shall also be held in the same manner in which meeting for the election of the Sarpanch is to be held, that is, the procedure prescribed in Rules 38 and 39 has to be followed. Rule 38 of the Haryana Gram Panchayat (First Amendment) Election Rules, 1971, is in the following terms :--
(1) The Block Development and Panchayat officer shall call meeting of Panches, to elect the Sarpanch, which shall be presided over by the Block Development and Panchayat Officer or by any other officer authorised in this behalf by him. Such officer shall be called the ''Presiding Officer,
(2) The Block Development and Panchayat Officer shall issue a notice in writing to all Panches intimating the date, time and place of the meeting referred to in sub-Rule (1).
(3) The notice shall be sent by post at least seven days before the date of meeting at the ordinary place of residence of each Panch and shall also be served through an official of the Block and a copy thereof shall be exhibited on the notice-board of the Panchayat :
Provided that the notice to a Panch, who is elected, coopted, or nominated after the issue of the notice under sub-Rule (2) shall be issued and served by the Presiding Officer in such manner as he deems fit before the meeting.
(4) A copy of notice, along with the entire original record of its service on the Panches, shall be made over under proper receipt to the Presiding Officer so as to form part of the proceedings of the election.
A perusal of the said provision of rule 38 would reveal that a meeting, in which Sarpanch is, to be elected is to be called by the Block Development and Panchayat Officer, should and has to be presided either by him or by any other officer authorised by him. In the present case, it is the admitted case of both the parties that the meeting in which a resolution expressing no-confidence in the petitioner was passed was convened by five of the Panches, i.e., respondents Nos. 4 to 8 and was presided by one of them. Once it is held that the procedure and the manner in which such a meeting has to be held and conducted is the one, i.e., prescribed by rule 38, then the meeting held on September 26, 1973, voting the petitioner out of office by expressing lack of confidence in him was ex facie illegal. In the above view, I receive sustenance from the following observations of Jain, J., made in Yad Ram v. Director of Panchayats etc, CW 4068 of 1973, (Civil Writ No. 4068 of 1973) decided on March 29, 1974, which is on all fours with the present case and with which observations I am in respectful agreement :--
The contention of Mr. Chander Singh, learned counsel for the petitioner, is that even in the cases where a meeting is to be called for passing a vote of no-confidence, the same procedure has to be followed, which is prescribed for holding the meeting for electing a Sarpanch. In other words, the contention of the learned counsel was that procedure given in rules 38 and 39 of the Haryana Gram Panchayat Election Rules (First Amendment), 1971, had to be followed. This contention of the learned counsel appears to be weighty, supported by a decision of this Court directly in point in
Dharam Singh and an other v. The State of Haryana 1973 PLJ 554 * * * * * *
Mr. Lamba, learned Deputy Advocate General was unable to challenge the correctness of the said decision. I fully agree with the aforesaid view taken by Tuli, J., and hold that before passing a vote of no-confidence, the procedure as laid down under rules 38 and 39 had to be followed. In the instant case, admittedly that procedure has not been followed. The meeting was not presided over by the Block Development and Panchayat Officer or by any other officer authorised in this behalf by him nor did the Block Development and Panchayat Officer issue a notice in writing to all Panches intimating the date, time and place of the meeting ; rather the notice, a copy of which has been attached as Annexure R 2/2 with the return filed by Sh. K.D. Taneja, Block Development and Panchayat Officer, was sent to the Sarpanch and Smt. Sarti Devi, Lady Panch, by the Panches who proposed to move a vote of no confidence. From the proceedings, held on 28th June, 1973, a copy of which has been attached with the petition as Annexure ''A'' it is clear that the meeting was presided over by Yad Ram petitioner. Merely this fact that the Block Development and Panchayat Officer and the Social Education and Panchayat Officer were also present in the meeting would not make it validly convened meeting as envisaged under rule 38.
Mr. Sarin, learned counsel for the respondents, urged that the meeting held on September 26, 1973, was in accordance with the instructions of respondent No. 1, who had expressly authorised that one of the Panches should preside over the meeting and the same be held in the presence of either the Block Development and Panchayat Officer or the Social Education and Panchayat Officer and since the Director is the Head of the Panchayat Department and the meeting had been held admittedly in compliance with his express instructions, the said meeting cannot be dubbed as illegal. I am afraid there is no merit in the contention of the learned counsel.
It has been held by their Lordships of the Supreme Court in Narbada Prasad v. Ghhaganlal and others AIR 1969 SC 396, that where law prescribes a certain mode of doing a thing, than that thing has to be done in the manner prescribed and in no other manner. This Court in Dharam Singh''s case (supra) had enunciated the law regarding the procedure to be followed for convening the meeting for passing a vote of no-confidence against the Sarpanch.
In view of the above decision, which was rendered by this Court much before the meeting dated September 26, 1973, the procedure applicable for convening such a meeting would be one that is prescribed by rule 38 and since that was the law at the time of the impugned meeting (whether the Director was in the know of the said law as declared by this Court or not), the ratio of Narbada Prasad''s case (supra) would apply with full force. Accordingly, the mode and the procedure prescribed by law not having been followed in holding the meeting and in passing the vote of no-confidence against the petitioner, the said meeting by virtue of the rotio of their Lordship''s decision has to be held to be illegal in the eye of law.
Mr. Sarin, learned counsel, lastly urged that since the petitioner had been defeated in the election to the office of Sarpanch held after his removal from the said office on March 6. 1974, it would be futile to set at naught the whole thing when it is likely that the petitioner in any fresh meeting of the Panchayat held for the purpose of voting him out of office would meet the same fate. The learned counsel for the respondents can be that sanguin but not the Court. More so, when viewed in the light of the fact that it was almost by an hairbreadth that he had lest both the bouts.
In view of what is stated above, I hold that the meeting of the Gram Panchayat held on September 26, 1973, in which the resolution expressing lack of confidence in the petitioner was passed and the permission accorded by respondent No. 1 and the fresh election held in pursuance of the order Exhibit P. 1 in which respondent No. 7 was elected as Sarpanch, were clearly illegal. I therefore, quash the resolution of no-confidence against the petitioner as also the order of respondent No. 1, Exhibit P. 1, and the election of respondent No. 7 as Sarpanch on March 6, 1974. In the circumstances of the case, I leave the parties to bear their own costs.