NARANBHAI KHEMDAS PATEL v. STATE — 1987 DIGILAW 123 (GUJ)

A. P. RAVANI, J. ( 1 ) CAN a litigant claim that his matter be not decided at the admission stage and be decided with certain other matters admitted on earlier occasion ? While answering this question it has become necessary to examine and understand how a decision of the Supreme Court is required to be read interpreted and applied to other cases ? These questions arise in the background of the facts that follow. ( 2 ) PETITIONER is Up-Sarpanch of Langhanaj Gram Panchayat which has been ordered to be superseded under Sec. 297 of the Gujarat Panchayats Act by the Development Commissioner respondent No. 2 herein as per his order dated 14/09/1987 The Panchayat is superseded on the ground that it has failed to pass the budget for the year 1987-88. In the meeting of the Panchayat held on 27/03/1987 the budget estimates were placed for approval Majority members of the Panchayat did not approve the same and thus the budget could not be passed. Show cause notice dated 15/06/1987 was served upon the Panchayat. The Panchayat was called upon to explain as to why it should not be superseded since it was in competent and since it had failed to perform its obligatory duly and the functions entrusted to it. Hearing of the notice was adjourned by the Development Commissioner from time to time. During the pendency of the hearing before the Development Commissioner one more chance was given to the Panchayat to place the budget estimates before General Body of the Panchayat and get the same approved. The Panchayat had convened another meeting on 26/08/1987 In that meeting also majority of the members of the Panchayat did not approve the budget estimates and thus the budget was not passed. The Executive Committee of the District Panchayat Mehsana also opined that the Panchayat should be superseded. Thus after affording an opportunity of being heard to the Panchayat and after following the required procedure the Development Commissioner passed the aforesaid order superseding the Panchayat under the provisions of Sec. 297 of the Gujarat Panchayats Act 1961 (hereinafter referred to as the Act ). The Panchayat has been superseded for a period of one year from the date of the order. The Panchayat has been superseded for a period of one year from the date of the order. This order is challenged by the petitioner by filing this petition inter alia on the ground that having regard to the provisions of Sec. 104 (3) of the Act it is not obligatory upon Panchayat to pass Budget and therefore provisions of Sec. 297 are not attracted. ( 3 ) AT the outset the learned Counsel for the petitioner submitted that other matters being Special Civil Application Nos. 4459 of 1981 3782 of 1982 and 12 of 1983 have been admitted and they are pending. It is submitted that in all these matters identical question with regard to the interpretation of Sec. 104 (3) is involved. In view of this position it is submitted that this petition also should be admitted and order rejecting the same should not be passed at this stage. In support of the aforesaid contention the learned Counsel for the petitioner has relied upon a decision of the Supreme Court in the case of Bir Bajrang Kumar v. State of Bihar and Others AIR 1982 SC 2090. The judgment is a very short one and it reads as follows:" Heard counsel for the parties. After going through the record of the case it appears that one of the cases involving an identical point has already been admitted by the High Court but another identical petition was dismissed by the same High Court. This therefore creates a very anomalous position and there is a clear possibility of two contradictory judgments being rendered in the same case by the High Court In these circumstances we allow this appeal and set aside the order dismissing C. W. J. C. No. 163 of 1985. This appeal is remanded to the High Court to be heard along with C. W. J. C. No. 5728 of 1984 which is pending hearing. " ( 4 ) IN fairness to the learned Conceal for the petitioner it must be stated that he made it clear that matters involving identical questions have been rejected also by this High Court. As stated by the learned Counsel it is held by this Court that failure to pass budget would be failure to perform statutory duty and it would result into a supersession of the Panchayat. As stated by the learned Counsel it is held by this Court that failure to pass budget would be failure to perform statutory duty and it would result into a supersession of the Panchayat. But it is submitted that against such decision Letters Patent Appeal is filed and the same is pending. Be that as it may. The question is is it necessary to admit this matter in view of the decision of the Supreme Court in the case of Bir Bajrang Kumar (supra) relied upon by the learned Counsel for the petitioner. ( 5 ) BEFORE examining and understanding the aforesaid judgment of the Supreme Court it is necessary to keep in mind certain guidelines laid down by the Supreme Court itself 2s regards the correct manner in which the Supreme Court decisions are required to be read and understood. In a number of decisions the Supreme Court itself has made it clear as to what exactly binds the lower Courts. It is not everything said by the Supreme Court in its judgment which is binding as law declared by the Supreme Court. that is considered binding to all the lower Courts is the ratio of the decision. The ratio of the decision is to be gathered from the statement of principles of law applicable to the legal problems disclosed in the facts of the case decided by the Supreme Court. In the Full Bench decision of this High Court in the case of Calico Mills v. Union of India reported in 24 (1) GLR at page 1 (F. B.) reference is made to a decision of the Supreme Court in the case of Dalbir Singh v. State of Punjab reported in AIR 1979 SC at page 1384. From this judgment the following observations made by the Supreme Court have been extracted:" According to the well-settled theory of precedents every decision contains three basic ingredients; (I) findings of material facts direct and inferential. An inferential finding of facts is the inference which the judge draws from the direct or perceptible facts; (II) statements of the principles of law applicable to the legal problems disclosed by the facts; and (III) judgment based on the combined effect of (i) and (ii) above. An inferential finding of facts is the inference which the judge draws from the direct or perceptible facts; (II) statements of the principles of law applicable to the legal problems disclosed by the facts; and (III) judgment based on the combined effect of (i) and (ii) above. For the purpose of the parties themselves and their privies ingredient No. (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject matter of the action. It is the judgment that stops the parties from reopening the dispute. However for the Purposes of the doctrine of precedent ingredient No (ii) is the vital element in the decision. This indeed is the ratio decidendi. It is not everything said by a Judge when giving judgment that constitutes a precedent "after extracting the aforesaid paragraph from the judgment of the Supreme Court the Full Bench has further observed:"the Supreme Court has also uttered a warning to the effect that the greatest possible care must be taken to relate the observations of a Judge to the precise issue before him and confine such observations even though expressed in broad terms in the general compass of the questions before him (see Madhav Rao Sciendia v. Union of India AIR 1971 SC 530 and A. D. M. Jabalpur v. S. Shukla AIR 1976 SC 1207 at page 1378 ). It is therefore evident that the decision of the Supreme Court is only an authority for what is actually decided and the observations made in the judgment should be restricted to the context in which they are made after relating the observations to the precise issue before the Court taking care to interpret the observations in the context of the question before the Court even though the same are expressed in broad terms. " ( 6 ) VERY recently in the case of Ambica Quarry Works v. State of Gujarat reported in AIR 1987 SC 1073 : (1987 (1) GLR 274 (SC)) the Supreme Court has observed:"the ratio of any decision must be understood in the background of the facts of that case it has been said long time ago that a case is only and authority for what is actually decided and not what logically follows from it. (see: Lord Hiasbury in Quinn v. Leathem 1901 AC 495 ). (see: Lord Hiasbury in Quinn v. Leathem 1901 AC 495 ). " ( 7 ) APPLYING the aforesaid principles laid down by the Supreme Court one should read and understand the judgment of the Supreme Court in the case of Bir Bajrang Kumar (supra) and pose a question what is the principles of law laid down by the Supreme Court in that judgment ? Since detailed facts are not in the judgments one has to make reasonable inferences. It appears that there may be a group of matters. One matter out of this group appears to have teen dismissed while other matters were admitted the matter must have been dismissed summarily without dealing with the points raised in the petition. It also appears that the matter which was rejected arose out of the same case. This is clear from the observations made by the Supreme Court to the effect that there is a clear possibility of two contradictory judgments being rendered in the same case by the High Court. ( 8 ) THE Supreme Court has not laid down law that all the matters in which identical points are involved should be admitted and decided together by the High Court. All that is considered objectionable is that when a matter involving identical point is admitted another matter involving identical point should not be rejected summarily. Summary dismissal of a petition involving identical question in the facts and circumstances of that case was likely to create anomalous position and hence in the background of the facts of the case the Supreme Court held that summary dismissal of the matter by the High Court was not proper. The judgment of the Supreme Court deals with the facts and circumstances of that case. The Supreme Court has not laid down any principle of law of universal applicability. It has not laid down the principle that in no case the High Court should decide a matter separately whenever another petition involving identical questions is pending before the High Court. That can never be so. If it is understood in that way the entire working of the High Court would become impossible. Every time matters involving identical questions will have to be clubbed Then the matters will have to be placed before a particular Bench only. The particular Bench also will have to wait for the matters which are yet to become ready. If it is understood in that way the entire working of the High Court would become impossible. Every time matters involving identical questions will have to be clubbed Then the matters will have to be placed before a particular Bench only. The particular Bench also will have to wait for the matters which are yet to become ready. This could never be the intention of the Supreme Court while passing the aforesaid order. No litigant can claim or insists that his matter should not be decided immediately. No prejudice will be caused to him if his matter is decided immediately. All that a litigant is entitled to is that his matter cannot and should not be decided without considering the points raised by him in the petition. As per the warning administered by the Supreme Court itself the observations made in the judgment should be restricted to the context in which they are made. ( 9 ) THE observation made by the Supreme Court in the case of Bir Bajrang Kumar (supra) are required to be confined and restricted to the question which arose before the Supreme Court in the facts and circumstances of that case. No generalisation can be made there from. It would be better if all the matters involving identical questions could be decided together. But if some matters are listed earlier or if some matters are capable of being decided at the admission stage by a reasoned order after dealing with all the points that may be raised by the petitioner then the judgment of the Supreme Court in the case of Bir Bajrang Kumar (supra) would not come in the way of the lower Courts. In such cases it becomes the duty-of the Court to give reasoned order and not to dismiss the matter without dealing with each and every points raised by the petitioner at the admission stage. It is not obligatory for the Court to issue notice to the other side and wait for the return to be filed. In response to he notice pending admission or even by caveat if the other side has appeared and if it has filed reply and if the Court is satisfied the Court may dispose of the matter without admitting the same. In response to he notice pending admission or even by caveat if the other side has appeared and if it has filed reply and if the Court is satisfied the Court may dispose of the matter without admitting the same. This course may be adopted by She Court at any stage of the proceedings i. e. prior to the notice to the other side or even after the notice to the other side. There is no particular virtue in admitting a matter and keeping the same pending in High Court. On the contrary if a matter could be disposed of at an earlier stage without admitting and without waiting for the reply from the other side it would be rather welcome and it is not something to be unhappy about. In above view of the matter reliance placed by the learned Counsel for the petitioner on the decision of the Supreme Court in the case of Bir Bajrang Kumar (supra) is of no help to the petitioner. Now the matter be examined on merits. ( 10 ) THE learned Counsel for the petitioner submits that if the Panchayat has failed to pass the budget it cannot be said that the Panchayat has committed consistent default in performance of its duties. Therefore the Panchayat should not have been superseded. The contention cannot be accepted. Failure to pass budget by the Panchayat would come within the scope of phrases incompetent to perform duties imposed upon the Panchayat or functions entrusted to it under the provisions of the Act. The Panchayat is duty bound to pass budget for carrying on its activities The Gram Panchayat concerned has failed to perform its statutory duty. No Panchayat could have functioned without passing the budget. In this view of the matter the respondent authorities have rightly held that two Panchayat is incompetent to perform its duties and therefore it is required to be superseded. ( 11 ) THE learned Counsel for the petitioner submitted that having regard to the provisions of Sec. 104 (3) of the Act it Cannot be said that to pass budget is an obligatory duty on the part of the Panchayat. Section 104 of the Act deals with Annual Budget of Panchayats. Every Panchayat is required to prepare its budget estimates of its income and expenditure in the next year on or before the date as may be prescribed. Section 104 of the Act deals with Annual Budget of Panchayats. Every Panchayat is required to prepare its budget estimates of its income and expenditure in the next year on or before the date as may be prescribed. The budget estimates so prepared by the Gram Panchayat is required to he scrutinised by the Taluka Panchayat concerned. After scrutiny the same is required to be sent back to the Gram Panchayat by the Taluka Panchayat with observations and recommendations. In the case of Taluka Panchayat the budget estimates required to be sent to the District Panchayat and the District Panchayat in turn after scrutinising the same returns it back to the Taluka Panchayat with its observations and recommendations. After receipt of the budget estimates with observations and recommendations the Gram Panchayat or the Taluka Panchayat as the case may be is required to place the same before the Panchayat. At that stage Sec. 104 (3) comes into play Section 104 (3) reads as Under : 104 (3 ). The Panchayat shall thereupon approve the budget estimate with such modifications as it may think fit having regard to the observations and recommendations made by the Taluka Panchayat or as the case may be the District Panchayat under sub-sec. (2 ). ( 12 ) THE learned Counsel for the petitioner submits that under Sec. 104 (3) of the Act it is open to the Panchayat not to pass the budget. The Panchayat may not even consider the observatories and recommendations made by the Taluka Panchayat. In his submission at this stage the Panchayat can refuse to pass the budget. The submission cannot be accepted. It is not open to the Panchayat not to pass the budget. It can do so only at the pale of suffering the consequences of failure to perform its duty. Analysing the provisions of Sec. 104 (3) of the Act it becomes clear that (I)THE Panchayat is required to take into consideration the observations and recommendations made by the Taluka Panchayat or as the case may be the District Panchayat; (II) The panchayat may modify the original proposals made in the budget estimates or it may not modify the same. This is clear from the phrases as it may think fit -. This is clear from the phrases as it may think fit -. But while doing so the Panchayat is required to tale into consideration the observations and recommendations made by the Taluka Panchayat; (III) Thereafter the mandate of the legislature follows the language used in the section requires that the Panchayat shall thereupon approve the budget estimates. ( 13 ) IN above view of the matter the clear language expressed by the legislature has got to be given its proper meaning. The legislature has expressed its unequivocal intention in mandatory form. Having regard to the language employed in the Section it is obligatory on the part of the Panchayat to take into consideration the observations and recommendations made by the superior Panchayat and thereafter to approve the budget eatimates It is not obligatory on the part of the Panchayat to adopt the observations and recommendations made by the superior Panchayat. It may discard the same. But it has got to take the same into consideration. The discretion is only with regard to the observations and recommendations made by the superior Panchayat and this is clear from the phrase as it may think fit occurring in the Section. But this phrase is applicable only to the observations and recommendations made by the superior Panchayat. Unless there is anything contrary either in the Section itself or in the scheme of the Act the plain language and unambiguous words used by the legislature have to be given their ordinary meaning. Nothing contrary is shown to me either from the provisions of the Section or from the scheme of the Act. ( 14 ) HOWEVER on the contrary the scheme of the Act suggests that the provisions of Sec. 104 (3) of the Act is nothing but mandatory. A Panchayat is required to prepare budget estimates of income and expenditure for the next year before the prescribed date. If the budget estimates are not prepared and if the budget estimates are not passed the Panchayat cannot function at all. No expenditure can be incurred by the Panchayat in such a situation. Therefore the legislature has given a mandate to the Panchayat to approve the budget estimates. Only the discretion is given with regard to the modifications to be made after considering the observations and recommendations made by the superior Panchayat. No expenditure can be incurred by the Panchayat in such a situation. Therefore the legislature has given a mandate to the Panchayat to approve the budget estimates. Only the discretion is given with regard to the modifications to be made after considering the observations and recommendations made by the superior Panchayat. If the Panchayat does not pass the budget the consequence is that functioning of the Panchayat becomes impossible and therefore the mandatory language. Thus having regard to the plain and clear language employed by the legislature and also having regard to the scheme of the Act the phrase the Panchayat shall thereupon approve the budget estimate has got to be given its ordinary meaning. By employing this phrase the legislature has given a mandate to the Panchayat and the mandate has got to be carried out. In view of this position the submission made by the learned Counsel for the petitioner that under Sec. 104 (3) of the Act it is not an obligatory duty on the part of the Panchayat to approve the budget estimate cannot be accepted. ( 15 ) THE learned Counsel for the petitioner submitted that though the Panchayat is superseded the Sarpanch will continue to act as Sarpanch. In his submission Sarpanch is directly elected and not elected by the members of the Panchayat. Therefore with the supersession of Panchayat he does not cease to hold the office of Sarpanch. The submission cannot be accepted. Just as the Sarpanch is elected directly all other members of the Panchayat are also directly elected. The distinction sought to be made is without any significance at all. In case of other members of the Panchayat voters of a particular ward elect them. While in case of Sarpanch the entire Gram or village is his constituency. The constituency is lie larger. That is the only difference. Moreover in this connection reference may be made to certain other provisions of the Act. Section 12 which deals with constitution of Gram Panchayat inter alia provides that a Gram Panchayat shall consist of members (including the Sarpanch) not less than 7 and not more than 15. Section 12 (2) provides that a Gram Panchayat shall have a Sarpanch and an Up-Sarpanch. These provisions clearly indicate that Sarpanch is a member of the Panchayat and is also a part of the Panchayat. Sarpanch can exist so long as the Panchayat is there. Section 12 (2) provides that a Gram Panchayat shall have a Sarpanch and an Up-Sarpanch. These provisions clearly indicate that Sarpanch is a member of the Panchayat and is also a part of the Panchayat. Sarpanch can exist so long as the Panchayat is there. It is conceivable that there may he a Panchayat without a Sarpanch. But there may be a Sarpanch without Panchayat. Section 45 of the Act provides that the term of office of the members of a Gram Panchayat and that of Sarpanch shall be co-extensive with the term of the Panchayat. When a Panchayat is superseded the term of the Panchayat comes to an end. As provided under Sec. 297 of the Act all the members of the Panchayat are required to vacate their office from the date specified in the order. Moreover Sec. 47 of the Act provides that the executive powers for the purpose of carrying out the provisions of the Act and the resolutions passed by a Gram Panchayat are to be exercised and performed by the Sarpanch. While as provided under Sec. 297 during the period of suspension all the functions of the Panchayat are to be per formed by such person or persons as the State Government may from time to time appoint in that behalf. This provision is clear indication of the legislative intend that when a Gram Panchayat is superseded the Sarpanch also has to vacate his office along with other members. By no stretch of reasoning it can be said that the Sarpanch is not a member of a Gram Panchayat along with other members of the Panchayat. He has also to vacate his office and his term also comes to an end with other members of the Panchayat. In above view of the matter the contention so raised by the learned Counsel for the petitioner has got to be rejected. ( 16 ) THERE is no substance in the petition. Hence the petition stands rejected. Notice discharged. (ATP) rule discharged. .