Manjula v. State of Rajasthan — 1997 DIGILAW 1317 (RAJ)

Honble SINGHAL, J.–By this writ petition prayer is made that entire proceedings initiated by Mr. Attah Ullah Khan, Asstt.Accounts Officer, Zila Parishad, Banswara, respondent no.2 on the basis of Annex.1 (complaint) be declared illegal and respondents be restraned from declaring the result of the said no confidence motion. The second contention which has been raised by the learned counsel forthe petitioner is that notice for no confidence motion is not in the prescribed form. (2). Earlier, D.B. Habeas Corpus Petition No. 2338/97 was preferred and it was found that Panchas were not illegally detained. Another question was raised that Mr. Attah Ullah Khan was not competent to issue notice for convening the meeting on 24th June, 1997. The Court directed that all the questions relating to the meetingof 24th June, 1997 be considered separately. (3). The present writ petition thereafter was filed alleging that Shri Dayanand Saini was posted as Chief Executive Officer, Zila Parishad, Banswara and he has handed over the charge to Shri Attah Ullah Khan on 2nd June, 1996. Shri Attah Ullah Khan is neither R.A.S. Officer nor I.A.S. Officer is not eligible to be appointed asChief Executive Officer in terms of Sec. 82(1) of the Rajasthan Panchayati Raj Act, 1994. In this matter a complaint was filed against the petitioner to the Chief Executive Officer. Thereafter, letter dt. 5.6.97 was issued by respondent no.2. In this notice, Tehsildar, Banswara was nominated to preside the meeting, but thereafter by order of the Collector, Tehsildar, Bagidora was appointed to preside over thesaid meeting vide order dt. 24.6.97. The petitioner submitted the objections to the Tehsildar, Banswara that Accounts Officer Shri Attah Ullah Khan is not authorised and cannot delegate his power. (4). The submission of learned counsel for the respondents is that respondent no.2 since was holding the charge, therefore, was competent to issue notice andin terms of Sec. 37(3) of the Act of 1994 notice has to be issued within 30 days from the date on which the notice of no confidence motion moved. It was obligatory to continue the proceedings which have been initiated. It is also stated that no prejudice was caused to the petitioner and that irregularity in the conduct of proceedings would not vitiate the proceedings. (5). I have considered of the matter. (6). It was obligatory to continue the proceedings which have been initiated. It is also stated that no prejudice was caused to the petitioner and that irregularity in the conduct of proceedings would not vitiate the proceedings. (5). I have considered of the matter. (6). So far as the question of notice in the prescribed form having not been issued is concerned, it is sufficient to observe that provisions of Sec. 113 of the Rajasthan Panchayati Raj Act, 1994 provide that no notice issued under this Act shall be invalid on account of any defect or omission in its form. In view of this pro-vision of the Act, this contention has no force. The validity of the provision is not in dispute before me and as such even if notice is not in the prescribed form would not effect the ultimate result. (7). The second question with regard to the procedure of no confidence motion is that under Sec.37 of the Rajasthan Panchayati Raj Act, 1994 the proceed-ings have been conducted by the person who was not authorised. Sec. 37 have contemplated that a motion expressing want of confidence has to be given by not less than one-third of the directly elected members of the Panchayati Raj Institution concerned together with a copy of the proposed motion to the competent authority. So far as this first aspect of the matter is concerned, it is not in dispute that noticeof intention to make motion was given to the competent authority. Sub-sec. 3 of Sec. 37 has contemplated that competent authority shall thereupon forward a copy of notice, together with a copy of the proposed motion to the Panchayat and convene a meeting for the consideration of the motion at the office of the concerned Panchayati Raj Institution which shall not be later than thirty days from the date on which the notice under sub-sec.(1) was delivered to him. The members are required to be given a notice of not less than 15 clear days of such meeting. The competent authority has to preside the meeting but for the reasons to be recorded nominate other officer to preside. The meeting so convened is not to be adjourned. The objection is that competent authority is the Chief Executive Officer and underSec. 82 of the Act, an officer of Indian Administrative Service or Rajasthan Administrative Service can be the Chief Executive Officer. The meeting so convened is not to be adjourned. The objection is that competent authority is the Chief Executive Officer and underSec. 82 of the Act, an officer of Indian Administrative Service or Rajasthan Administrative Service can be the Chief Executive Officer. The action which has been taken by issuing notice to the members and delegating the powers under Sec. 37(4) to the Tehsildar is without jurisdiction because respondent no.2 was not the Chief Executive Officer. Reliance is placed on the decision given in the case of Ram Karanvs. Dy. District Development Officer (1) where motion of confidence was required to be delivered to the Joint Development Commissioner who could have convened the meeting but the motion was received by the Dy. District Development Officer. This Court held that he has no jurisdiction. (8). On behalf of the respondents, it is stated that Officer who is having thecharge is de facto exercising the power of Chief Executive Officer. Reliance is placed on the judgment given in the case of Gokaraju Rangaraju vs. State of A.P. (2) wherein it was observed that ``the doctrine is now well established that ``the acts of the Officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their ownbenefit, are generally as valid and binding, as if they were the acts of officers due jure. (Pulin Behari vs. King Emperor (3). As one of us had occasion to point out earlier ``the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. Anillegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence, the de facto doctrine (Vide Immedisetti Ramkrishnaiah Sons vs. State of Andhra Pradesh (4). (9). Anillegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence, the de facto doctrine (Vide Immedisetti Ramkrishnaiah Sons vs. State of Andhra Pradesh (4). (9). Reliance is also placed on the decision given in the case of Rajendra Singh vs. State of M.P. (5) wherein it was held that violation of each and every provision would not furnish a ground for the Court to interfere, even in a case of violation of mandatory provisions does not follow is a matter of course. The decision given in the case of Surat Ram vs. Addl. District Development Officer (6) has also been reliedthat mere violation of rule or law is not sufficient and there must be substantial injury or substantial failure of justice. In this case, all the members were present but the Presiding Officer was not present on a no confidence meeting. It was held that motion cannot lapse. The decision given in the case of Bhure Khan vs. State of Rajasthan (7) is also relied wherein decision of Radhey Shyam vs. Vijay Singh (8)was referred and it was observed as under:- ``5. In Radhey Shyams case (1) the notice for convening a meeting issued by the Collector was defective as much as that it did not comply with the mandatory requirement of Section 72(3) of the Act but that defect in the notice did not in any manner affect the opinion of the members, and therefore, this Court observed that ``it is true that when the mandatory provisions of law have been violated while despatching the notice to hold the meeting on September 18, 1971 it would go to vitiate the result of the meeting, but I cannot forget that I am entertaining the petition of the petitioner in exercise of a jurisdic- tion which is a entirely discretionary. The traditions of democracy require that a person who wants to hold the elected office of a local body must give due respect to the wishes of the majority of the members of that body and if he has lost the confidence of that majority, then he should not try to stay in that office even for a moment and should not come forward to seek the protection of this Court under the extra-ordinary jurisdiction conferred by Article 226 of the Constitution. This jurisdiction is of a equitable nature and in equity if a petitioner does not come with clean hands he is not entitled to seek any remedy from the Court. Arguments have been considered. (10). The objection that no prejudice is caused has no substance because the petitioner has not only boycotted the meeting but submitted in writing that respondent no.2 has no jurisdiction to convene the meeting or authorise the Tehsildar topreside such meeting. The prejudice could be in number of ways and if the order is without jurisdiction, then it can be challenged on the ground of jurisdiction alone. It is true that in a democratic set up, will of the majority has to prevail. In order to safeguard and preserve the democratic principles, a procedure has been prescribed and one has to follow that. If the procedure is not followed, number of un-foreseen situations may arise. A contention was raised that two members have been win over and a frivolous habeas corpus petition was filed earlier. There may be horse trading but it is for the people to maintain their moral and standard. (11). In this case, from the perusal of provisions of Sec. 37 it is evident that motion of no confidence has to be submitted to the competent authority. The word``competent authority has been defined under Sec. 2(vii) which reads as under:- ``competent authority means such officer or authority as the State Government may, by notification in the Official Gazette, appoint to perform such functions and exercise such powers of a Competent Authority with respect to such provisions of this Act and in relation to such Panchayati Raj Institutions as are specified in the Notification. (12). From the above notification, it is clear that it is only that Officer who has been notified in the Official Gazette to perform functions under the Act. (12). From the above notification, it is clear that it is only that Officer who has been notified in the Official Gazette to perform functions under the Act. Sec. 82 of the Act mentions that an Officer of Indian Administrative Service or Rajasthan Administrative Service shall be the Chief Executive Officer of the Zila Parishad whoshall be appointed by the Government and likewise, the Addl. Chief Executive Officer and other Officers can be appointed. Power and definition of the Chief Executive Officer and other Officers have been given under Sec. 84. The duty which has been casted upon the Chief Executive Officer by this Act and for which he has been authorised in the Gazette notification has to be discharged by him. The StateGovernment has the power of delegation under Sec. 98 of the Act. Under Sec. 102 of the Act power to make rules have been given. In exercise of that power, Rajasthan Panchayati Raj Election Rules, 1994 and Rajasthan Panchayati Raj Rules, 1996 have been framed. Rule 21 of the Rules of 1996 has contemplated that notice of motion for no confidence in respect of Sarpanch has to be issued by the ChiefExecutive Officer. Rule 336 have also prescribed the powers which the Chief Executive Officer can exercise. The person who is merely holding the charge of Chief Executive Officer cannot be equated to that of competent authority or Chief Executive Officer for which a Gazette notification is necessary. (13). From the perusal of the provision of Act and Rules, I am of the view thatso far as motion submitted by one-third member to the Chief Executive Officer is concerned, neither there is any dispute nor it could be said to be invalid but issue of notice by respondent no.2 or authorising the Tehsildar by him under Sec. 37(4) cannot be said to be done by a competent authority. There has to be a Gazette notification for exercising the powers. The Chief Executive Officer can be either the I.A.S. or R.A.S. Officer and simply because respondent no.2 was holding the charge, he cannot be considered the Chief Executive Officer for all purposes or the competent authority as required under the Act. No such notification has been brought to my notice by which power of issuing notice or convening the meeting could have been exercised by him. No such notification has been brought to my notice by which power of issuing notice or convening the meeting could have been exercised by him. In these circumstances, proceedings from the stage of issue of notice are hereby quashed. The Chief Executive Officer now shall proceed to issue notice in accordance with the provisions of sub-sec. 3 of Sec. 37 of the Act and convene the meeting. The result of the meeting held on 24th June, 1997 shall not be declared but now fresh notices would be issued by the Chief Exe-cutive Officer within seven days from today in accordance with the provisions of the Act and Rules. (14). The writ petition is allowed with the above observations.