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2002 DIGILAW 214 (KER)

Narayanan v. Delampady Grama Panchayat

2002-03-25

K.K.DENESAN

body2002
Judgment :- K. K. Denesan, J. Delampady Grama Panchayat in Kasaragod District has got 12 elected members constituting the Panchayat Committee, the 3rd respondent. Ext. P4 resolution was passed by the 3rd respondent in the meeting held on 25.1.2002. Petitioner, an elected member of the Panchayat seeks to quash Ext. P4 and to declare that the President or any member who presides over the Panchayat Committee meeting is not entitled to cast vote in the first instance when there is tie, and that the action of the 2nd respondent in casting two votes in the meeting held on 25.1.2002 in favour of Ext. P4 resolution is illegal. He also seeks for a further declaration that "Ujampady Meethana Hithalu Cross Bar-cum-Bridge Project" cannot be included as a work under the Scheduled Caste scheme. This Writ Petition has subsequently been amended incorporating the following reliefs also: "to declare that R.10 of the Kerala Panchayat Raj (Procedure of Panchayat Meetings) Rule is invalid, to declare that S.161(6) of the Panchayat Raj Act does not empower the President or person presiding over the meeting to cast 2-votes, and to declare that S.161(6) is invalid in so far as it permits the person presiding over the meeting to exercise two votes in respect of one resolution of the committee. " 2. The brief facts necessary for the disposal of this Original Petition are as follows: The 1st respondent Panchayat decided to construct Ujampady Muthama Hithalu Cross Bar-cum-Bridge project in the S. C. P. sector, under the People Planning Programme for 2001-2002, and to forward the proposal to the District Planning Committee. The project was intended for the benefit of Scheduled Castes. Therefore it became necessary to obtain the required certificate from the Scheduled Caste Development Department of the Government. The 1st respondent-Panchayat requested the Government of Kerala for the grant of the certificate. But, the Scheduled Caste Development Officer under the Govt. of Kerala declined the certificate for Ujampady Muthama Hithalu Cross Bar-cum-Bridge project for the reason that 50% of the agricultural land that may be benefitted by the said project does not belong to Scheduled Caste people. Under the circumstances, the Standing Committee (Development) of the Panchayat decided to recommend to the 1st respondent to drop Ujampady. Muthama Hithalu Cross Bar-cum-Bridge project and instead to implement "Natakkallu Lift Irrigation and Bannur S. C. Konany Lift Irrigation Projects. Under the circumstances, the Standing Committee (Development) of the Panchayat decided to recommend to the 1st respondent to drop Ujampady. Muthama Hithalu Cross Bar-cum-Bridge project and instead to implement "Natakkallu Lift Irrigation and Bannur S. C. Konany Lift Irrigation Projects. " But when this question was taken up in the meeting of the Panchayat Committee held on 25. ........there was difference of opinion among the committee members and hence that item was left to be decided by majority of votes of the members present. The meeting was presided over by the 2nd respondent-President of the Panchayat. In the poll, out of the total strength of 12 (including the President), six-members supported the decision of the Standing Committee and six (including the President) voted against. Since the number of the members who supported the decision of the Standing Committee and who opposed the same was evenly balanced, the President exercised the casting vote which tilted the balance and led to the passing of Ext. P4 resolution. Petitioner is one among the six members who supported the decision of the Standing Committee. Naturally he does not want Ext. P4 to be implemented. Ext. P4 resolution is attacked mainly on the ground that it is the result of the President of the Panchayat casting the vote twice, one in the first instance and the second as casting vote in favour of the self same resolution. 3. Respondents 2 and 3 have filed a joint counter affidavit. On the basis of R.10 of the Kerala Panchayat Raj (Procedure of Panchayat Meetings) Rules (hereinafter referred to as 'the Rules') they contend that all elected members present in the meeting including the member presiding the meeting have got the right to cast their votes and in cases of equality of votes the person presiding can exercise a casting vote also. It is therefore submitted that Ext. P4 is validly passed in strict compliance with the procedure laid down in that behalf. 4. Sri. M. Saseendran, learned counsel appearing for the petitioner submits that R.10 aforesaid is ultra vires the. parent Act. According to him, there is nothing in S.161(6) of the Kerala Panchayat Raj Act (hereinafter referred to as 'the Act') that confers on a member the right to cast two votes in favour of or against one and the same resolution in the same meeting. parent Act. According to him, there is nothing in S.161(6) of the Kerala Panchayat Raj Act (hereinafter referred to as 'the Act') that confers on a member the right to cast two votes in favour of or against one and the same resolution in the same meeting. R.10 which says that the person presiding can exercise a casting vote also (emphasis supplied) is inconsistent with S.161 since that section does not speak about the member presiding the meeting exercising any right to cast his vote in the first instance. Counsel then contends as an alternate proposition that if S.161(6) of the Act is understood as conferring on the person presiding the meeting the right to cast more than one vote, then that section is liable to be declared invalid. According to the counsel it is only legitimate to presume that the Legislature did not intend to confer an additional right on any member - be he the President or the Vice-President or any other person presiding the meeting - as it would be against well known principles of democracy and equality. Lastly, it is submitted that Ext. P4 is liable to be interfered with in as much as the 3rd respondent Panchayat Committee has committed a serious error in rejecting the proposal of the Standing Committee (Development) and resolving to implement the project against its opinion. 5. Sri. K. Ramakumar, learned counsel appearing for respondents 2 and 3, submits that a conspectus of the various provisions of the Act which deal with the rights and liabilities of the members of the Panchayat makes it clear that the person presiding the meeting does not cease to be a member and cannot be taken out of the ambit of a member of the Panchayat. He refers to S.35 of the Act which deals with the disqualification of members, S.3SA which deals with the cancellation of membership, S.36 which deals with the determination of subsequent disqualification of a member, various provisions in Chapter XTV of the Act relating to members and the President of Panchayats, particularly, Ss.152, 153, 159 and 160 and contends that the elected member, be he the President or the Vice-President or person presiding the meeting, continues to enjoy all rights and incur all liabilities as a member of the Panchayat. According to him, there is nothing inherently bad or illegal in conferring the right to cast one more vote on the person presiding, in cases of equality of votes. The person presiding the meeting, as long as he is a member of the Panchayat, cannot be denied his right to cast his vote in the first instance, in the absence of specific provision to the contrary. 6. I shall first deal with the prayer made by the petitioner to declare that Ujampady Muthama Hithalu Cross Bar-cum-Bridge project cannot be allowed to be implemented by the Panchayat I do not think it necessary to deal with that issue at length as it is not the function of this Court to evaluate the merits and demerits of chosing one project or the other and its implementation by a democratic body entrusted with that duty. In fact, such evaluation or enquiry is not called for in the facts and circumstances of this case since the Original Petition is bereft of all relevant materials to undertake such evaluation. I must say that whether a particular project should be implemented or not essentially falls within the province of that body which is empowered to decide which project should be chosen for implementation. The petitioner is not justified in seeking the interference of this Court in such matters. In any view, the petitioner is free to invoke the alternative remedy under S.191 of the Act which empowers the Government to cancel or suspend any resolution passed by a Panchayat and R.11 of the Rules which provide a remedy for cancellation of a resolution coming within the purview of the said rules. I have no hesitation to reject the prayer made by the petitioner for a declaration that the project in question is liable to be abandoned by the Panchayat and instead another project should be taken up for implementation. It is unfortunate that the filing of this Original Petition has stood in the way of the work being implemented in time and that the funds sanctioned for the work will lapse if not executed before 31st March, 2002. 7. The next issue to be considered is as to whether R.10 of the Rules is ultra vires or in the alternative S.161(6) of the Act is invalid as contended by the petitioner. 8. 7. The next issue to be considered is as to whether R.10 of the Rules is ultra vires or in the alternative S.161(6) of the Act is invalid as contended by the petitioner. 8. Part IX of the Constitution of India which deals with 'Panchayats' was inserted by the Constitution 73rd Amendment Act, 1992 with effect from 24.4.1993. The object of the amendment is to give effect to the policy enshrined in Art.40 of the Constitution which directs the State to organise village panchayats as units of self Government. In Part IX, Art.243-C of the Constitution provides for the composition of panchayats. Art.243-C(4) specifically provides that the Chairperson of the Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayats (emphasis supplied). The Kerala Panchayat Raj Act, 1994 was passed by the State Legislature in due compliance with the Constitution 73rd Amendment Act, 1992. Chapter XV of the Act deals with meetings, powers, functions, duties and property of panchayats. S.161(2) of the Act says that every meeting of a Panchayat shall be presided over by its President, or in the absence of the President by its Vice-President or in the absence of both by a member chosen by the members present at the meeting to preside over the occasion. Sub-s.(4)of S.161 says as follows: "Save as provided in this Act, the time and place of a meeting of a Panchayat, the quorum of such meeting, the procedure for calling such meeting and the procedure at such meeting shall be such as may be prescribed. " It is useful to extract sub-s.(5) of S.161 also: "The rules referred to in sub-s.(4) may provide for preventing any member or President or any member or Chairman of a Committee from voting on, or taking part in the discussion of any matter in which apart from its general application to the public he has any direct or indirect pecuniary interest, whether by himself or through some other person, or from being present or presiding at any meeting of the Panchayat or of the Committee during the discussion of any such matter. " This implies that the Act has not deprived the President of the right to vote in the first instance in favour or against any resolution. " This implies that the Act has not deprived the President of the right to vote in the first instance in favour or against any resolution. Any restriction of that right is left to be regulated by Rules to be made in that behalf. No provision has been brought to my notice which deprives the rights conferred on a member of the Panchayat to an elected member presiding the meeting of the Panchayat. 9. Counsel for the petitioner has made an attempt to import into the conduct of the business of the Panchayat, the procedure followed in the Rajya Sabha and the Lok Sabha where the Chairman of the Speaker as the case may be is deprived of the right to vote in the first instance but to exercise only a casting vote in the case of equality of votes. Learned counsel submits that similar is the position of the Speaker in the State Legislatures too. It is true that the procedure followed in the conduct of business of either House of Parliament as also the Legislature of the State is as stated above. But one cannot lose sight of the fact that the procedure thus followed is as expressly provided in the Constitution. Art.100 of the Constitution specifically provides that the Chairman or Speaker, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of equality of votes. It is pertinent to note that in the first part of this Article it is stated that all questions at any sitting of either Houses or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker. A similar provision, namely, Art.189 governs the conduct of business of the Legislative Assembly or the Legislative Council of a State under which the Speaker or Chairman, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes. No such provision, either express or implied, is seen incorporated by the State Legislature in the Act. No such provision, either express or implied, is seen incorporated by the State Legislature in the Act. On the contrary Art.243-C(4) of the Constitution mandates that the Chairperson of a Panchayat and other members of the Panchayat shall have the right to vote in the meetings of the Panchayats. This alone is sufficient to repel the contention of the petitioner in support of his plea that the person presiding the meeting of the Panchayat has no right to cast vote in the first instance and I do so. 10. Now I shall proceed to examine the next limb of the argument advanced by the learned counsel for the petitioner touching the validity of S.161(6) of the Act and R.10 of the Rules. The contention is that a law which permits a member of the Panchayat to exercise the right to cast two votes in respect of one and the same resolution is liable to be declared invalid. Of course, the above proposition, in the abstract may appear to carry some weight. But in the context in which such a right is conferred by the Act and the Rules the said proposition loses its strength and renders itself unacceptable. Under normal circumstances, the person presiding exercises his right to vote in respect of a resolution only once. I have already found that this right cannot be denied to the Chairperson or President in view of Art.243-C(4) of the Constitution. In cases of equality of votes, extra ordinary situation may emerge bringing a stalemate in the conduct of business of the, Panchayat Committee. In such circumstances, law cannot fail to find out a solution. S.161(6) of the Act and R.10 of the Rules therefore provide that in cases where the number of votes are evenly balanced, the President, or the Vice-President or the member presiding the meeting will have the right to cast one more vote, otherwise called the casting vote to break the tie. In my view the right conferred by the Act and the Rules on the person presiding the meeting to exercise the casting vote, which, no doubt, is in addition to the right to vote in the first instance in his "capacity as a member of the Panchayat, has got a nexus with the object sought to be achieved, namely, to break the tie. S.161(6) of the Act and R.100 of the Rules are intended to aid and ensure the proper conduct of the business of the Panchayat. I therefore hold that there is nothing illegal in allowing a member presiding the meeting to exercise his right to vote in the first instance and a casting vote intended to break the tie. Counsel points out that instead of making provision for a casting vote, the same object can be achieved by lot. This, of course, is a method to break the tie. But it is for the Legislature to lay down in its wisdom, the appropriate method and this Court will not substitute its opinion to that of the Legislature. R.10 of the Rules is neither inconsistent nor in conflict with any of the provisions in the Act. There is nothing in S.161(6) of the Act which makes it invalid or unconstitutional. Petitioner is not entitled to the reliefs prayed for. The Original Petition fails and it is accordingly dismissed.