Nandulal Jain vs The State of Andhra Pradesh and Others

Honourable Mr. C. Kondaiah, Chief Justice

This application by the petitioner sarpanch under Article 226 of the Constitution of India to quash the order of the Court of the District Munsif, Mahabubabad holding that he has incurred the disqualification to act as Sarpanch as be did not convene any meeting of the Gram Panchayat for a period of 90 days, gives rise to a short but interesting question of law relating to interpretation of Section 25 (2) of the A.P. Gram Panchayats Act, 1964 (hereinafter called the Act). Admittedly the petitioner was elected as Sarpanch of the Gram Panchayat, Dornakal and functioning as such till he is said to have ceased to be so, for his failure to convene meeting of the Gram Panchayat for a period of 90 days from 24-7-1977. The respondent by his proceedings dated 2-12-1977 declared that the petitioner had ceased to be the Sarpanch as he had failed to convene any meeting of the Gram Panchayat from 24-7-77 to 30-10-77 as required by Section 25 (2) of the Act. The Petitioner filed an application before the court of the District Munsif. Mahabubabad u/s 25 (3) of the Act for a declaration that he has not incurred any disqualification to act as the Sarpanch of Gram Panchayat, Dornakal. The respondent countered the allegations in the application as mis-conceived and mis-interpreted, apart from being incorrect. In support of the claim of the petitioner that he has not incurred disqualification to act as Sarpanch and that he has done his duty to convene the meeting of the Gram Panchayat within a period of 90 days as required by section 25 (2) he examined himself as P.W.1, the then Executive Officer. Gram Panchayat as P.W.2 and the present Executive Officer, as P. W. 3 and also filed Exs. A1 to A 10. The respondent examined one K. Butchaiab as P.W.1. P.W 1 deposed that he had directed P.W.2 the Executive Officer to convene a meeting of the Gram Panchayat on 3-10-77 as per office order No. 36 marked as as Ex. A. 4 dated 23-9-77 as per Ex. A5 dated 12-10-77. He had directed P.W.2 under Ex. A. 6 finally to convene the meeting on 27-10-77 and it was the general practice that he directs the Executive Officer to convene a meeting on a particular day and the Executive Officer used to issue notice to members of the Gram Panchayat by fixing the date of the meeting as advised by him He also complained against the then Executive Officer Sri Jalel Siddiqui to the collector (Panchayats), who gave a charge sheet against the Executive Officer and therefore the then Executive Officer bore grudge as he was not on good terms with him and he purposely failed to convene the meeting as directed by him in Ex. A4. This evidence of P.W.1 has been corroborated by P.W.2, who admitted that he received the order Ex. A4 from P.W.1 to convene a meeting on 3-10-77 and he ordered the clerk through Ex. A7 dated 24-9-77 to issue agenda notice to all the members but the clerk did not issue the notice as he was otherwise busy. Ex. A-8 dated 12-10-77 is the note made by the clerk Jaganmohanachari, P.W. 2 admitted that through Ex. A5 dated 12-10-77 P.W.1 had called for his explanation for not convening a meeting as required in Ex. A4. He, in his turn, called for the explanation of the clerk. Ex. A9 dated 15-10-77 is the endorsement on the office order made by P.W. 2 and Ex. A10 dated 17-10-77 is the explanation of the clerk. The records produced by the Government Pleader and the Original notices, issued to the members of the Gram Panchayat intimating the convening of the meeting of the Gram Panchayat, filed by the writ petitioner clearly indicate and establish that it was the Executive Officer. Dornakal, that was actually issuing the notices to the members of the Gram Panchayat intimating the convening of the meeting as ordered or directed by the Sarpanch. This documentary evidence is available consistently since 1970 till date. The District Munsif in his order clearly found that the Divisional Panchayat Officer admitted that on 23-9-77 the petitioner has asked the Executive Officer, to convene the meeting and the P.W. 2 the then Executive officer who was not in good terms with the petitioner as he had reported against him to the collector, Panchayat wing and who was served with a charge sheet, and not carried out instructions and failed to issue the notice as per his directions in order No. 36 the English translation of order No. 36 Ex. A4, dated 23-9-77 reads thus :--

You are not convening the meeting since the last three months inspite of my telling you. You are hereby directed to convene a meeting of the Members on 3-10-77 at 4 P.M. and issue the agenda notice to all the members.

It is clear from the record that the Sarpanch had in fact, directed and ordered the Executive Officer to issue notice for convening the meeting on 3-10-77 and was also issuing similar directions to convene meeting of the members since three months prior to 23-9-77 and he was not obliging the sarpanch. The District Munsif however held that it was the duty of the Sarpanch to convene and hold atleast one meeting in a consecutive period of three months and his failure to do so automatically made him cease to be the Sarpanch u/s 25 (2) of the Act. The Court below held that the petitioner had incurred the disqualification to act as Sarpanch and therefore dismissed the application. Hence this writ petition.

The sum and substance of the contention of Sri S. Parvatha Rao, the learned counsel for the petitioner, is that the petitioner-sarpanch has discharged his duty to convene meeting of the Gram Panchayat within one month and atleast one meeting within a period of 90 days from the last meeting, that no meeting of Gram Panchayat could be held within a period of 90 days from 24-7-77 due to failure of the Executive officer and the clerk in not carrying out the petitioner''s orders to send the notice for the meeting as per the practice prevailing in the Gram Panchayat but not due to any fault or failure on the part of the sarpanch in the discharge of his duties, and that, therefore, he cannot be held to have ceased to be the Sarpanch as per the provisions of Sub-Section (2) to Section 25 of the Act. This claim of the petitioner is resisted by the Government Pleader for Home, contending inter-alia that it is the duty of the Sarpanch u/s 25 (1) (b) to convene the meetings of the Gram Panchayat and the fact that no meeting was held within a period of 90 days from the last meeting held on 24-7-79 is sufficient to attract the provisions of sub-section (2) to Section 25 of the Act, and the failure of the Executive Officer, who no doubt used to summon the meetings would not in any way come to he aid of the Sarpanch.

The question, therefore, that falls for determination is whether the petitioner Sarpanch has failed to discharge his duty to convene the meeting of the Gram Panchayat with the result that no meeting of the Gram Panchayat is held within a period of 90 days from the last meeting.

In order to appreciate the scope of the contentious of the respective parties, it is necessary to notice the provisions of Sections 24, 25, 31 and and 32 of the Act. Section 24(1) states that the sarpanch shall cease to hold office on his becoming a member of the Panchayat Samithi as provided in clause (a) and on his becoming disqualified for holding the office or on his removal from office or the expiry of his term of office as provided in clause (b) Sub-Section (2) to section 24 applies to the cases of upa-sarpanch ceasing to hold office as such, as provided therefor. Section 25 provides for the powers and functions of the Sarpanch. u/s 25 (1) (b) one of the functions or powers of the sarpanch is to convene meeting of the Gram Panchayat and the Grama Sabha, Sub Section (2) of section 25 enjoins the Sarpanch to convene meetings of the Gram Panchayat and Gram Sabha, as stipulated therein, Sub-Section (3) which has been substituted by Act 46 or 1976 provides for an application to the District Munsif having jurisdiction over the area in which the office of the Gram Panchayat is situated for a decision of a dispute regarding the correctness of such cessation indicated by sub-Section (2) to Section 25 Section 31 indicates the functions of the Executive Officer, whereas section 32 describes the functions of the Executive Authority. The Executive Officer shall ordinarily attend the meetings of the Gram Panchayat or any committee thereof. Though he is entitled to take part in the discussions, he is not entitled to vote or move any resolution. "Executive Authority" is defined u/s 2 (9) as the Executive Officer in the case of a Gram Panchayat or a group of Gram Panchayats having an Executive Officer in charge, the Sarpanch of the Gram Panchayat. In the case of any other Gram Panchayat, the Sarpanch thereof will be the ''executive authority''. The Executive Authority shall be responsible for implementing the resolutions of the Gram Panchayat and the committees thereof. He has to control all the officers and servants of the the Gram Panchayat. He shall also exercise all the powers and perform all the functions specifically conferred or imposed on the executive authority by or under the Act for the purposes of carrying out the provisions of the Act. He is directly responsible for the due fulfilment of the purpose thereof (vide Section 32 (c)).

In the present case, the Executive Authority of the Gram Panchayat, Dornakal was the Executive Officer has a statutory duty and obligation to perform all the functions specifically conferred or imposed on the Executive Authority by or under the Act. It is established that it was the Executive Authority that has to summon the members of the Gram Panchayat for meeting under the instructions or directions of the Sarpanch who has a statutory duty and obligation to convene a meeting of the Panchayat every month or atleast one meeting within a period of 90 days, from the date of the last meeting. Section 32 (c) makes it obligatory for the executive officer to exercise the Executive power for the purposes of carrying out the provisions of the Act and is directly responsible for the fulfilment of the purpose thereof. The Legislature of Andhra Pradesh has in our view, designedly made section 32 (c) with a view to achieve the fulfilment of the purposes of the Act by carrying out the provisions of the Act. Many of the elected sarpanchas might not be fully aware of the Rules and Regulations and the Procedural complications and consequences thereof. Some of the Sarpanchas as well as the members of the Gram Panchayats may be illiterate and some may not be familiar with English language. However, they being elected representatives of the people, have to discharge their statutory duty and obligation as required by the statute through the machinery of the Officers. The Sarpanch is not a paid servant of the Gram Panchayat, in strict sense and be is only an elected representative of the people who has to perform certain duties and fulfil certain obligations as required by the state and the rules made thereunder.

With this background we have to read the provisions of sub section (2) to Section 25. It is the duty of the Sarpanch to convene meeting of the Gram Panchayat at least once in a month. The Expression ''If the Sarpanch fails to discharge the duty with the result that no meeting of the Gram Panchayat is held within a period of ninety days from the last meeting.........he shall, with affect from the date of explanation of period of ninety days...as aforesaid, cease to be the Sarpanch, has to be interpreted in a proper, pragmatic and practical way. As pointed out earlier, it is indeed the duty of the Sarpanch to convene the meeting of the Gram Panchayat atleast once in a month the Sarpanch shall cease to be the Sarpanch if he has failed to discharge his duty to convene meeting of the Gram Panchayat at least one in a month with the result that no meeting of the Gram Panchayat was held with in a period of 90 days from the last meeting. The conditions precedent for attracting this disability are two (1) no meeting of Gram Panchayat should have been held within a period of 90 days from the last meeting and (2) the cause for not convening the meeting must be the failure of the Sarpanch to discharge his duty to convene the meeting. Unless and until Sarpanch in the discharge of his duty to convene meeting of the Gram Panchayat within a period of 90 days from the last meeting it cannot be said that this provision, which makes the Sarpanch cease to be so, would come into operation, where no meeting of the Gram Panchayat is held within a period of 90 days from the last meeting, not due to convene meetings, but due to the failure of the Executive Officer or any other employee, in the discharge of his duty beyond the control of the Sarpanch, the provisions of sub-section (2) to section 25 will not come into play. Stress is laid to make the Sarpanch, cease to be the Sarpanch on his failure to discharge his duty to convene at least one meeting within a period of 90 days from the last meeting. He is not made vicariously liable, To put it differently, a sarpanch cannot be punished for no fault of his or for the fault of the Executive Officer of some other person or for any act which is beyond his control, or for act of God, which results in not holding the meeting. This in our view, is the intendment and object of Section 25 (2). This practical and pragmatic interpretation of the provisions of Section 25 (2) would be conducive to the Interests of the people of the State who live in villages where a large population is still ignorant and illiterate. The legislature would not have intended to punish the sarpanch for no fault of his. Further, this disability, which makes the Sarpanch cases to be so, is not a very serious one when compared to the other disqualifications indicated in the Act. Disqualification of persons convicted of election offences as Sarpanchas is embodied in Section 18. Section 19 catagorises the disqualification of candidates, whereas section 20 specifies the disqualification of members.

Section 50 provides for removal of a Sarpanch under certain circumstances indicated therein. Therefore, we have to keep this aspect also in view while construing the provisions of sub section (2) to section 25. It what the Government Pleader contends has to be acceded to it will lead to several anamolies and great hardship to the Sarpanchas, The executive officers, can act in such a way as to see that no meeting of the Gram Panchayat is held Within a period of 90 days from the last meeting and consequently make the sarpanch liable to cease to be Sarpanch under the provision. That would not have been the intendment of the Legislature, what has happened in the present case is exactly the same. The Sarpanch has in fact directed and ordered the Executive Officer to inform the members of the Gram Panchayat and send no ices to them about the meeting to be held at 4 P. M. on 3-10-77; but the Executive Officer did not comply with the order or direction of the Sarpanch; although he has got a statutory duty or obligation to carry out the orders of the Sarpanch in this regard. He cannot escape from this obligation and duty to inform the members by sending notices to them about the meeting to be held on 3-10-77, The complaint of the Sarpanch is, that the Executive Officer who was ill-disposed towards him--as he had complained against him to the Collector who has given a chargesheet to him--did not co-operate with him out deliberately, failed to sum non the members with a view to see that the Sarpanch comes within the purview of section 25 (2).

On a consideration of the entire facts and circumstances we have no reason to reject his plea. The documents and the Government records ampply support his version. We find from the Government records that disciplinary action is being taken against the Executive Officer and the clerk separately. Such Officer must be certainly dealt with severely and in accordance with law. They can not be allowed to violate the orders and directions of the Sarpanchas unless they are found to be against the Public interest, or in any way, detrimental to the interests of the Gram Panchayat and the people at large.

This brings us to examine the question whether the Sarpanch has discharged his duty to convene meeting of the Gram Panchayat on 3-10-77, the expression "to convene a meeting" is different from "to hold a meeting. The expression "to Convene" is meant "to come together to assemble, to call together" etc. In this context "to call together" is more appropriate. When once the order to summon or call for a meeting of the Gram Panchayat is made by the Sarpanch, it being a ministerial act, the actual calling and summoning must be carried out by the Executive Officer and the clerk. The petitioner-Sarpanch has not only ordered to call for all the members of the Gram Panchayat for a meeting but has specifically indicated the time of meeting as 4 P.M on 3-10-77. The particular order or direction of the Sarpanch is not an oral one but is in writing. It this had been carried out by the Executive Officer and the clerk, the present situation would not have arisen. The very section 25 (2) itself makes the difference between the expression "to convene" and "to hold" a meeting as they have been used separately in different contexts in the very same section, The Sarpanch can be said to have discharged his duty when once it is proved that he has covered meeting of the Gram Panchayat. In order to attract the provisions of section 25 (2) of the Act, the non-holding of meeting of the Gram Panchayat within a period of 90 days from the last meeting must be the direct result of the failure of the Sarpanch in the discharge of his duty to convene a meeting. It he could not convene any meeting within the above statutory period on account of the failure of the Executive officer to discharge his duty or on account of some other act of God or circumstances beyond his control, he will not be disqualified, as he is not directly responsible for the same and as he has not failed in the discharge of his duty in convening the meeting. Admittedly a meeting of the Gram Panchayat was convened on 24-10-77.

We, therefore, approve the decision of our learned brother Ramachandra Rao, J, in W.P. 6738 of 1973 wherein it was held that section 25 (2) does not require the Sarpanch himself to conduct or hold the meeting or preside over the meeting and it is enough if he has summoned the members for the meeting of the Gram Panchayat on a particular date. (See also Chaitram vs. Panchayat Samithi Malegaon)AIR 1966 Bombay, page 1.

For the reasons stated above, we hold that the petitioner-Sarpanch discharged his duty of convening a meeting of the members of the Gram Panchayat in question and therefore, he did not cease to be the Sarpanch of the Gram panchayat. We therefore, quash the order of the District Munsiff as well as the order of the Divisional Panchayat officer, Mahabubabad, in Rc. No 3004/77.A1 dated 2-12-77, and declare the writ petitioner to be the Sarpanch u/s 25 (2) of the Act.

The writ petition is therefore allowed with costs.