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1986 DIGILAW 367 (ALL)

Banns v. District Panchayat Raj officer

1986-05-16

B.L.YADAV, K.C.AGARWAL

body1986
JUDGMENT B.L. Yadav, J. - By the present petition under Article 226 of the Constitution of India the Petitioner has prayed for a writ of Certiorari quashing the order dated 18.9.85 (Annexure-1 to the petition), passed by the District Panchayat Raj Officer, Respondent No. 1. 2. The facts of the case lie in a very narrow compass and they are these. One Cedi was elected as Pradhan of the Gaon Sabha Kowalski, Block Kampur, Distt. Jumper. On 24.8.85 the Petitioner along with four other persons presented a written notice signed by not less than one half of the total members of the Gaon Sabha with the intention to move a motion of no confidence against the Pradhan and the same was delivered to the Prescribed Authority, who immediately convened a meeting to be held on 20.9.85 u/s 14 of the U.P. Panchayat Raj Act, 1947, (for short the Act). He deputed the Assistant Development Officer (Panchayat) to hold an enquiry about the genuineness or otherwise of the signatures made on the notice for the motion of no confidence as he had received some complaints about the signatures on the motion of no confidence being not genuine. He received the report that a number of signatures OB the notice were not genuine and after deducting those signatures the motion of no confidence ceased to remain signed by half of the total number of members of the Gaon Sabha. By the impugned order the meeting fixed for 20.9.85 to discuss the motion of no confidence was cancelled. 3. Sri R.P. Goel, learned Counsel for the Petitioner urged that the provisions of Section 14 of the Act read with Rule 33B of the U.P. Panchayat Raj Rules (for short the Rule) lead to only one conclusion that after the receipt of notice of the intention to move a motion of no confidence, the Prescribed Authority has no power to either hold an enquiry or to depute somebody else to hold an enquiry on any complaint being received about the genuineness or otherwise of the signatures or thumb marks on the notice. The Respondent No. 1 erred in deputing the Assistant Development Officer (Panchayat) to hold an enquiry. The impugned order based on that report was manifestly erroneous. Reliance was placed on Shiv Ram v. District Panchayat Rai Officer 1983 AWC 970 and Shamburg Singh v. District Panchayat Raj Officer 1984 AWC 781 . The Respondent No. 1 erred in deputing the Assistant Development Officer (Panchayat) to hold an enquiry. The impugned order based on that report was manifestly erroneous. Reliance was placed on Shiv Ram v. District Panchayat Rai Officer 1983 AWC 970 and Shamburg Singh v. District Panchayat Raj Officer 1984 AWC 781 . 4. Sri Brenda Singh, learned Counsel for the contesting Respondents on the other hand urged that once a notice to move a motion of no confidence was received by the Prescribed Authority, he was not just to act upon it without applying his mind. If he has been given power to fix a date Under Rule 33B, not later than thirty days from the date of receipt of notice, he has also implied power under his discretion to hold an enquiry either himself or depute somebody else to ascertain the genuineness of signatures or thumb impressions on the notice. The impugned order based on that enquiry or report was legal and within jurisdiction. There was no ground for interference under Article 226 of the Constitution. Reliance was placed on Daya Shaker v. District Panchayat Raj Officer 1968 ALJ 753 and Mathura Prasad Tewari v. Assistant District Panchayat Raj Officer 1966 AWR 765 (1). 5. Having heard the learned Counsel for the parties the point for our consideration is as to whether the Prescribed Authority after receiving the notice of intention to move the motion of no confidence, can hold an enquiry or can depute somebody else for the said purpose to ascertain the genuineness or otherwise of the signatures on the notice. u/s 14 of the Act it has been provided that the Gaon Sabha may, at a meeting specially convened for the purpose and of which at least 15 days' previous notice shall be given, remove the Pradhan by a majority of two thirds of the members present and voting. Sub-section (4) of Section 14 of the Act provides procedure for removal of the Pradhan, which states that the procedure for removal of Pradhan, including that to be followed at such meeting shall be such as may be prescribed. Sub-section (4) of Section 14 of the Act provides procedure for removal of the Pradhan, which states that the procedure for removal of Pradhan, including that to be followed at such meeting shall be such as may be prescribed. Rule 33B provides that the written notice of the intention to move a motion of no confidence against a Pradhan shall be delivered by not less than 5 members signed by at least one half of the total number of members of the Gaon Sabha and the Prescribed Authority shall convene a meeting of the Gaon Sabha on a date to be fixed by it, which shall be not later than 30 days tromp the date of the receipt of the notice. We are of the opinion that even though it has not been specifically provided under Sub-rule (2) of Rule 33B that the Prescribed Authority may hold an enquiry about the genuineness or otherwise of the signatures, but as he has been given power to convene a meeting fixing the date for discussion about the removal of Pradhan, in case he has Deceived complaints about the genuineness of material number of signatures on the notice, it is implicit in his authority, and in his discretion he can hold an enquiry himself or depute somebody else for the said purpose. Simply because an enquiry has been held and the Impugned order has been passed on that basis it cannot be said that the impugned order was manifestly erroneous. 6. In the Full Bench case of Mathura Prasad Tewari v. Assistant District Panchayat Raj Officer, (Supra), Hon'ble M.C. Desai, C. J, observed as follows: The most that can be said is that the matter is in the discretion of the Prescribed Authority, if a complaint is made to it that material number of signatures is invalid, it may, in its discretion, make an enquiry or refuse to make it. Similar was the view taken by Hon'ble Satish Chandra, J, as he then was, in Daya Shankar v. Distt. Panchayat Raj Officer (Supra) 1 "The Prescribed Authority was not obliged by law to make an enquiry into the genuineness or otherwise of the signatures appended to the notice. Similar was the view taken by Hon'ble Satish Chandra, J, as he then was, in Daya Shankar v. Distt. Panchayat Raj Officer (Supra) 1 "The Prescribed Authority was not obliged by law to make an enquiry into the genuineness or otherwise of the signatures appended to the notice. The enquiry directed to be conducted in the instant case was informal for the personal satisfaction of the Prescribed Authority for which the Pradhan or other member of the Gaon Sabha have no concern or interest. 7. We are of the opinion that where the result of the electoral process was sought to be set at naught and notice signed by not less than half of the members of the Gaon Sabha was given to the Prescribed Authority to convene a meeting to consider it, in his discretion he would be justified to hold an enquiry to satisfy himself about the genuineness of the signatures, but the enquiry should not be long drawn and date for consideration should not be fixed beyond the statutory period of thirty days. We deem it proper to refer to a Latin maxim " Ut Restages Valet Qualm Per eat " which obviously means that an statute or any enacting provision must be so construed as to make it more effective and operative-See Commissioner of Income Tax, Delhi Vs. S. Teja Singh, AIR 1959 SC 352 8. In Shiv Ram v. District Panchayat Raj Officer (Supra), relied upon by the learned Counsel for the Petitioner, the Full Bench case of this Court in Mathura Prasad Tewari v. Asstt. District Panchayat Raj Officer (Supra) was not considered nor the case of Daya Shankar v. Distt. Panchayat Raj Officer (Supra) was considered. No other authority has also been referred to in that case. Notices do not appear to have been issued and Respondent No. 3 was not heard and in our opinion that case can be deemed to be a view of the Division Bench on the particular facts of that case. Panchayat Raj Officer (Supra) was considered. No other authority has also been referred to in that case. Notices do not appear to have been issued and Respondent No. 3 was not heard and in our opinion that case can be deemed to be a view of the Division Bench on the particular facts of that case. In Quinn v. Leathern, (1910) AC 495 St was observed as follows I " Every judgment must be read as applicable to the particular facts proved or assured to bus proved, since the generality of the expression which may be found, they are not intended to be exposition of the whole law but governed and clarified by particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decided. 9. In Shamburg Singh v. Distt. Panchayat Raj Officer (Supra), relied upon by the Petitioner, it was held that even though request was made to hold an enquiry about the genuineness of material number of signatures on the notice, but that was correctly rejected as no specific assertion was made to that effect, It means if assertions would have been made the request to hold enquiry would have been granted. In the instant case specific assertion has been made. This case, therefore, is of no assistance to the Petitioner. 10. We are, therefore, of the opinion that it was under the discretion of the Prescribed Authority to hold or not to hold the enquiry and even if it has to be made it should not be a long drawn enquiry so as to take it beyond the statutory period of thirty days as required by Rule 33B. The enquiry has to be informal one. 11. There is yet another aspect of the case. Three reliefs have been claimed by the Petitioner i (a) to issue a writ in the nature of Certiorari quashing the order dated 18.9.85, (b) to issue a writ in the nature of Mandamus commanding the Respondents to pass a fresh order under Sub-rule (2) of Rule 33B, (c) to issue any other suitable writ. 12. So far as first relief is concerned, by the order dated 17/18.9.85, the meeting fixed for 20.9.85 was set aside by the District Panchayat Raj Officer. 12. So far as first relief is concerned, by the order dated 17/18.9.85, the meeting fixed for 20.9.85 was set aside by the District Panchayat Raj Officer. Even if the order dated 17/18.9.85 (Annexure-1) is quashed nevertheless in view of Sub-rule (2) of Rule 33B on the basis of the notice dated 24.8.85 the date has to be fixed within thirty days from the date of notice i. e. only by 22.9.85 on which date the motion of no confidence was to be considered, but today it is impossible to direct to pass an order fixing a date on 22.9.85 or some other date within thirty days. We are reminded of a maxim "Lex none cog it ad impossibly " which means that the law does not compel a man to do that which he cannot possibly perform. On the written notice presented by the Petitioner and four others purporting to have been signed by not less than half of the members of the Gaon Sabha to initiate proceeding for motion of no confidence, no order can now be passed fixing any date as contemplated by Sub-rule (2) of Rule 33B, for consideration of the motion of no confidence. Accordingly none of the reliefs can be granted or the Petitioner. 13. In a democratic country like ours, in case an elected representative loses confidence of the electorate, the latter have a right of recall, if the legislature so provides. Under the circumstances, however, it is open to the member of the Gram Sabha to initiate fresh proceedings, if there are grounds for the same, for motion of no confidence against the Pradhan and the same shall be considered according to law. u/s 14(3) of the Act the provision is that if a motion of no confidence is not take up for want of quorum or fails for lack of requisite majority at the meeting, no- subsequent meeting for the removal of the same Pradhan shall be convened within a year of the date of previous meeting. u/s 14(3) of the Act the provision is that if a motion of no confidence is not take up for want of quorum or fails for lack of requisite majority at the meeting, no- subsequent meeting for the removal of the same Pradhan shall be convened within a year of the date of previous meeting. In the instant case, 20.9.85 was the date fixed for considering the motion but before that it was cancelled by the Prescribed Authority by order dated 17/18.9.85, it cannot, therefore, be said that the motion was not taken up for want of quorum nor it can be said to have failed for lack of requisite majority at the meeting, rather the meeting was cancelled by the Prescribed Authority himself, hence the bar of one year would not apply in the instant case. We are, however, constrained to observe that Rule 33B is not happily worded. 14. Subject to these observations we are of the opinion that this petition lacks merit and deserves to be dismissed. 15. In the result, the petition fails and it is accordingly dismissed. We, however, refrain from making any order as to costs.