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Kerala High Court · body

1983 DIGILAW 50 (KER)

KUNHAMMED HAJI v. EXECUTIVE OFFICER, TRIPRANGOTTUR PANCHAYAT

1983-02-17

P.SUBRAMONIAN POTI, PARIPOORNAN

body1983
Judgment :- 1. The petitioner in O.P. No. 5932/82 is the appellant in W.A. No. 733/82, that being an appeal against the judgment in O.P. No. 8775/82. We will first deal with OP. No. 5932/82. The petitioner was the President of the Triprangottoor Panchayat coming within the jurisdiction of the District Panchayat Officer, Cannanore, who is the 2nd respondent in the Original Petition. There are 9 members in the Panchayat Board. 8 of the members presented a resolution to the District Panchayat Officer, Cannanore expressing want of confidence in the President of the Panchayat, the petitioner. The District Panchayat Officer thereupon issued a notice dated 2-4-1982 informing that the motion of no-confidence would be taken up for consideration at the meeting convened to be held on 23-4-1982. Pursuant to the notice the meeting was held on 23-4-1982 presided over by the District Panchayat Officer. Of the 7 members present one is said to have opposed the resolution and 6 voted in favour of the resolution. Consequently the 2nd respondent, the District Panchayat Officer declared that the motion expressing want of confidence in the President of the Panchayat was passed. Ext. P3 is the minutes of the proceedings as recorded in the minute book. 2. Thereupon the petitioner came to this Court in O.P. No, 3100/82. In view of the decision reported in Gopalakrishnan v. Executive Officer (1981 KLT. 508) this Court allowed the Writ Petition. The decision in Gopalakrishnan v. Executive Officer (1981 KLT. 508) is on the basis that in SRO. 294/64 which was relied on in that case there was empowering of the District Panchayat Officer to receive the written notice of intention to make the motion of no-confidence in the President, but there is no power in the District Panchayat Officer to convene meeting in exercise of the powers under sub-s.(3) of S.54 of the Act. In this view the writ petition was allowed quashing the proceedings. All the same the Court specifically permitted proceedings pursuant to the resolution to be continued. Subsequent to that judgment the District Panchayat Officer issued a fresh notice dated 21-7-1982 convening a meeting for the consideration of the notice of intention. Copies of the notice dated 21-7-1982 is before us as Ext. P4. It is thereupon that the petitioner came to this Court challenging the above said notice Ext. P4 issued for consideration of the no-confidence motion. Copies of the notice dated 21-7-1982 is before us as Ext. P4. It is thereupon that the petitioner came to this Court challenging the above said notice Ext. P4 issued for consideration of the no-confidence motion. The ground taken by the petitioner and urged before us in the Original Petition is that the District Panchayat Officer is not competent to issue a notice of motion as he is not authorised to do so. Ext. P5 produced in this petition which is said to be an authorisation under S.54(3) is challenged as not competent, for, according to the petitioner the authorisation must be in individual cases after receipt of the motion of no-confidence. It is therefore said that the proceedings taken by the District Panchayat Officer must be held to be invalid. 3. Subsequently in the Original Petition the petitioner moved for stay of all further proceedings pursuant to the notice for convening the meeting to consider the no-confidence motion. This Court was not inclined to grant stay as such. On 11-8-1982 a learned judge of this Court passed an interim direction that: "that decision in the matter need be implemented only after orders from this Court." Evidently this enabled the meeting to be held and resolution considered. The implementation of the resolution alone was postponed. On 12-8-1982 the meeting is said to have been held and no-confidence resolution is passed. Evidently it was not implemented immediately because of the interim order of this Court. On 22-9-1982 this Court modified the interim order making it clear that: "the decision taken can be implemented." It is thereafter that the petitioner was removed by the Deputy Director of Panchayats by Ext. P1 dated 6-10-1982 in the subsequent Original Petition, O.P. No. 8775/82. The contention raised in O.P. 8775/82 in which this order is challenged is that the removal was not proper because the petitioner did not get the two day's time after the passing of the motion to voluntarily resign and walk out of office and therefore the removal ought not to be enforced. That Original Petition stands dismissed and the Writ Appeal No. 733/82 came up before us for admission. It was then that the learned counsel requested that it may be heard along with the final hearing of O.P. No. 5932/82: 4. Now we will refer to O.P. No. 5932/82. That Original Petition stands dismissed and the Writ Appeal No. 733/82 came up before us for admission. It was then that the learned counsel requested that it may be heard along with the final hearing of O.P. No. 5932/82: 4. Now we will refer to O.P. No. 5932/82. S.54 of the Kerala Panchayats Act deals with motion of non-confidence in the President or Vice President of the Panchayat. Sub-section (1) provides that such motion shall be made in accordance with the procedure laid down in S.54. We are concerned in this ease with sub-sections (2) and (3) and therefore we extract these sub-sections: "54 (2) Written notice of intention to make the motion in such form as may be fixed by the Government, signed by such number of members as shall constitute not less than one half of the total strength of the Panchayat, together with a copy of the motion which is proposed to be made shall be delivered by any two members signing the notice in person, to the Deputy Director. (3) Any officer of the Government not below the rank of District Panchayat Officer authorised by the Deputy Director in this behalf, shall convene a meeting of the Panchayat for the consideration of the motion, to be held at the office of the Panchayat at a time appointed by the aforesaid officer, which shall not be later than thirty days from the date on which the motion under sub-section (2) was delivered to the Deputy Director. The aforesaid Officer shall give to the members notice of not less than fifteen clear days of such meeting and of the time appointed therefore." We may also advert to the fact that sub-section (3) underwent an amendment by Act 22 of 1967 which amendment enabled authorisation by the Deputy Director on any Officer of the Government not below the rank of District Panchayat Officer The mode of authorisation after the amendment of sub-section (3) is seen illustrated by Ext. P5. In exercise of the power under S.54(3) the District Panchayat Officer has been authorised under Ext P5 notification in 1970. P5. In exercise of the power under S.54(3) the District Panchayat Officer has been authorised under Ext P5 notification in 1970. Prior to the amendment of S.54(3) in that manner delegation by the Deputy Director in favour of the District Panchayat Officer or any other officer was possible by resort to S.143(1) which provides that the Government may by notification in the Gazette authorise any authority, officer or person to exercise in any local area in regard to any Panchayat or any class of Panchayats or all Panchayats in that area any of the powers vested in the Director, the Deputy Director, the Collector or any other officer by this Act except the power to make rules and may in like manner withdraw such authority. SRO 191/62 is a notification made pursuant to the section and one of the powers delegated to the District Panchayat Officer by the above said notification is the power under S.54(3) to convene a meeting. Therefore while before the amendment of S.54(3) in 1967 the delegation to the District Panchayat Officer of the power of Convening a meeting under S.54(3) could be by virtue of a notification under S.143(1) of the Act, subsequent to the amendment that could be by resort to a notification under S.54(3) which notification is produced in this case as Ext. P5. Consequent upon this amendment naturally in the notification under S.143(1) the delegation of power under S.54(3) was cancelled. That is what Ext. P6 order indicates. 5. No doubt S.54(2) specified the function of receiving written notice of the no-confidence motion in the Deputy Director of Panchayats, but that could be delegated under S.143(1) and the District Panchayat Officer could exercise that function by virtue of such delegation. 6. The position therefore was that the notice of intention to make the no-confidence motion could be received by the District Panchayat Officer in place of the Deputy Director by reason of the delegation of that power by notification under S.143(1). The District Panchayat Officer could convene the meeting to consider the no-confidence motion by virtue of Ext. P5 notification authorising him to act in place of the Deputy Director of Panchayats. In the case before us the District Panchayat Officer received the notice and the District Panchayat Officer issued notice to convene the meeting to consider the no-confidence motion. 7. The District Panchayat Officer could convene the meeting to consider the no-confidence motion by virtue of Ext. P5 notification authorising him to act in place of the Deputy Director of Panchayats. In the case before us the District Panchayat Officer received the notice and the District Panchayat Officer issued notice to convene the meeting to consider the no-confidence motion. 7. We may in this context refer to the decision in Gopalakrishnan v. Executive Officer (1981 KLT. 508). There S.54(2) was referred to and reference was also made to SRO. No. 294/64 which authorised the District Panchayat Officer of the State to exercise in regard to all the Panchayats within their respective jurisdiction the power conferred on the Deputy Director of Panchayats under sub-s. (2) of S.54. After referring to this provision the court went on to observe that: "There is, however, nothing therein expressly or by necessary implication, empowering the second respondent to convene a meeting in exercise of the powers under sub-s. (3) of S.54 of the Act." That is natural. The court was considering a notification under S.143(1) and (3) authorising the District Panchayat Officer to exercise the powers of the Deputy Director under S.54(2) and normally one would not find any authorisation in such notification to function on. behalf of the Deputy Director under S.54(3). 'Such a notification could bean independent notification. In that judgment there has not been an examination as to whether independent of SRO. 294/64 which naturally was not and did not purport to be an authorisation under S.54(3) the District Panchayat Officer had in fact been authorised by any other notification. Evidently on the earlier occasion when the matter came to this Court and the proceedings was quashed the court simply followed the decision in Gopalakrishnan v. Executive Officer (1981 KLT. 508), but that did not preclude fresh proceedings in accordance with law being taken on the no-confidence motion. In fact it was permitted. Therefore the question when such proceedings were commenced afresh was only whether the District Panchayat Officer had power to issue such notice. Ext. P5 notification was noticed and it was found that the said notification conferred power under S.54(3) on him and therefore there is nothing wrong, in his issuing notice. 8. It has been contended before us that the issue of an order in the nature of Ext. Ext. P5 notification was noticed and it was found that the said notification conferred power under S.54(3) on him and therefore there is nothing wrong, in his issuing notice. 8. It has been contended before us that the issue of an order in the nature of Ext. P5 authorising the District Panchayat Officers generally to exercise the functions contemplated under S.54(3) would not be competent. It is the case of the counsel that such orders must be made in individual cases after receipt of motions and on consideration of facts and circumstances of the case. We do not see any warrant for such an approach at all. In fact in many statutes similar provisions are to be found. The statutes may authorise the exercise of functions by a named functionary and permit delegation of such functions to functionaries which the Government or any named authority may specify. This elasticity is called for, for, the framers of the statute cannot conceive at the time the statute is passed as to which authorities would be the appropriate authorities who could deal with the functions. That must necessarily be left to be defined later and therefore the Legislative practice of enabling the authorisation such as that found in S.54(3) of the Act. Neither the language of S.54(3) nor the object with which that provision is enacted justified the stand that one should read the requirement as one of authorisation in individual cases. That will not be administratively expedient. Moreover that may lead to picking and choosing officers for each case. The plain language of the section gives no room for such a construction. In the circumstances we see no merit in the plea of invalidity in the action of the District Panchayat Officer in issuing the notice calling for convening the meeting to consider the no-confidence motion. Hence the petitioner is not entitled to any relief in O.P. No. 5932/82 and the petition is dismissed. 9. Now we come to the Writ Appeal No. 733/82 filed against the judgment in O.P.No. 8775/82. Hence the petitioner is not entitled to any relief in O.P. No. 5932/82 and the petition is dismissed. 9. Now we come to the Writ Appeal No. 733/82 filed against the judgment in O.P.No. 8775/82. That Original Petition was evidently dismissed in limine at the time the case came up for admission before a learned single judge of this Court We had already adverted to the history of the case which indicates that the day previous to that on which the no-confidence motion was to be considered the petitioner, having resorted to this Court, sought an interim order from this Court staying the further proceedings, but this Court did not choose to order any stay of such proceedings. On the other hand this Court only directed that the decision that may be taken on 12-8-1982 need be implemented only after orders from this Court. That is a green signal by this Court to proceed with the meeting, but restricting the implementation. That was ultimately vacated, after a few days, on 22-9-1982. The contention urged before us is that under sub-section (13) of S.54 a period of 2 days is available to the President or the Vice-President to resign his office after passing of the motion of no-confidence. By resort to that he can avert removal and leave his office with some trace of grace yet. According to the petitioner he did not have this opportunity, for, the two days contem-plated under the rule after the passing of the motion were days during which he was not obliged to think of resigning from the Office and removing himself therefrom because of this Court's order that the decision passed at the meeting on 12-8-1982 will not be implemented By the time this Court held that it could be implemented the two days were over and there was no time for him to avail of the benefit of removing himself without having to be removed by an order in the nature of Ext. P1 in the case. It is true that a person against whom a no-confidence motion has been passed could honourably get out of his office by resigning within two days. That was available to the petitioner in this case also. Nothing prevented him from resigning his office. P1 in the case. It is true that a person against whom a no-confidence motion has been passed could honourably get out of his office by resigning within two days. That was available to the petitioner in this case also. Nothing prevented him from resigning his office. Of course if he hoped that he would win the Original Petition and therefore took the risk of not resigning he can have ho complaint that he could not utilise the opportunity when ultimately he lost the case: There was not even a stay. Not that a stay would in any way stand against his resigning. Even if the court has passed an order of stay his act resignation being voluntary one that would in no way be prevented by such an order of stay. In this case though he sought an order of stay the Court effectively declined to grant him any such stay, but only directed non-implementation. The no-confidence motion was passed. Once that was passed it was up to him to decide whether he should resign or not. Having not chosen to do so he cannot say that because of the order of this Court this resolution can never become effective. There is no substance in this contention. Hence in agreement with the learned single judge we hold that there is no case in appeal. The appeal is dismissed in limine. Dismissed.