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2006 DIGILAW 487 (KER)

George Varghese v. State of Kerala

2006-08-02

K.M.JOSEPH

body2006
Judgment :- K.M. Joseph, J. The Writ Petitioner is the President of the third respondent Block Panchayat. He challenges Cl.6 & 7 of Ext.P2 as ultra vires S.162 (2) of the Kerala Panchayat Raj Act, 1994. A declaration is also sought that Cl.23 of Ext.P2 is ultra vires S. 162 (3) of the Act. The further prayers are to quash Ext.P4 and to declare that the decision taken in Ext.P1 is legal. 2. It is the case of the petitioner that the Panchayat determined the number of Members to its Standing Committees vide Ext.P1. Ext.P3 is a notice issued by the petitioner for convening a meeting to conduct election of Members to the three Standing Committees on 5.11.2005. By Ext.P4, however, the second respondent issued notice to the Secretary of the Panchayat for determining the number of Members of each Standing Committee in accordance with Ext.P2 Circular. 3. The petitioner premises his case on S. 162(2) of the Kerala Panchayat Raj Act. It reads as follows: “Every Standing Committee shall consist of such number of members, including its Chairman as decided by the Panchayat, so that all other elected Members except the President and Vice President shall be elected as Member in any of the Standing Committees and the number of Members elected to each Standing Committee shall, as far as possible, be equal”. According to him, the determination of the number of Members in each Standing Committee should be after excluding the President and Vice President. Thus, the determination of the number of Members of the Standing Committee of the Panchayat is to be 4+3+3, as excluding the President and Vice President, there are ten Members. The Vice President, under the Act, will became the Ex-Officio Member of the Finance Committee and he will be the Chairman of the said Committee also. It is his contention that based on sub-s.(2) of S.162, what the Act stipulates is that the number determined after excluding the President and Vice President shall be as far as possible equal. He would point out that this equality is to be predicated among Members elected after excluding the President and Vice President, and he would further point out that there is no provision in the Act to re-determine the number of Members already determined under S. 162(2) of the Act, and Ext.P4 is illegal. 4. He would point out that this equality is to be predicated among Members elected after excluding the President and Vice President, and he would further point out that there is no provision in the Act to re-determine the number of Members already determined under S. 162(2) of the Act, and Ext.P4 is illegal. 4. A counter Affidavit has been filed by additional respondents 4 and 5. Ext.R4(a) is the Minutes of the meeting dated 21.10.2005. It is their case that in the Committee, the President suggested in the meeting that the constitution of the three Standing Committees should be with five Members for Finance, three Members for Development and three Members for Welfare Standing Committee. It is further pointed out that the respondents pointed out that the constitution should be as 4+4+3, and that the President then informed that at present it may be fixed as 5,3,3 which could be changed later. They expressed their dissenting note in this regard. It is pointed out that fixing of the number of the Member of the Standing Committee is against S. 162(2) of the Act and it has to be altered. It is their contention that the Circular does not go against the provisions of the Act. They would contend that the real intention is to get the Chairmanship of Standing Committee to them. 5. The first respondent has also filed a Counter Affidavit, inter alia, pointing out that Vice President is one among the total strength of the Finance Committee. It is that position which is clarified by Ext.P2 Circular. It is pointed out that the strength of the Standing Committees shall be equal as far as possible. The circular was issued to make things uniform. 6. It is now pertinent to note also the provisions of the Circular. Cl.6, 7 and 23 which are challenged, are as follows: 7. Shri Jacob P. Alex learned counsel appearing on behalf of the petitioner would contend that the provisions of Cl.(6) of Ext.P2 Circular clearly contravene S.162(2). He would point out that S.162 clearly contemplates that the number of Members elected shall be as far as possible equal. Cl.(6) on the other hand, he points out, provides for inclusion of the Vice President and then provides that the Members of the said Committee should be as far as possible equal. He would point out that S.162 clearly contemplates that the number of Members elected shall be as far as possible equal. Cl.(6) on the other hand, he points out, provides for inclusion of the Vice President and then provides that the Members of the said Committee should be as far as possible equal. He points out that “Members elected” is used in contra-distinction from “elected Members” used earlier in the very same provision. He also points out that “Members elected” would not take within its scope the President or the Vice President. This is for the reason that the President is an Ex Officio Member of every Committee and the Vice President is the Ex Officio Member with the right to vote and the unselected Chairman of the Standing Committee for finance. Therefore, the elected Members can only be those Members other than the President and Vice President. Equality as far as it impossible is, therefore, only to be maintained among the Members other than the president and Vice President. But, this principle enunciated in the Act is contravened by provisions of Cl.(6), is his contention. Shri. T.R. Ramachandran Nair, learned counsel appearing for the additional respondents, on the other hand, would point out that S. 162(2) clearly providing for reckoning the Chairman of the Committee who can only be the Chairman of the Committee for finance, namely, the Vice President and this is clear from the very opening words of sub-s.(2) of S. 162, and that the argument of the petitioner overlooks this limb of the Section. Shri Jacob P. Alex would take me also to the provisions of sub-s.(3) of S.162 which provides that the number of Members of each Standing Committee as decided by the Panchayat under sub-s.(2) shall not be changed within the term of that Panchayat. He questions the legality in Ext.P4 directing a change in the number of Members which-was fixed by the Committee. 8. It is not in dispute that the Chairman of every Standing Committee except the Standing Committee for Finance is to be elected by the Members of the respective Standing Committee (sub-s. (5) of S.162). He also relies on sub-s.(7) which provides that a Member other than the Ex Officio Member of a standing Committee and the Chairman of the Standing, Committee other than the Standing Committee for Finance, may resign the Membership or Chairmanship of the Standing Committee. He also relies on sub-s.(7) which provides that a Member other than the Ex Officio Member of a standing Committee and the Chairman of the Standing, Committee other than the Standing Committee for Finance, may resign the Membership or Chairmanship of the Standing Committee. He would point out that the intention of the Legislature was that Members of the Standing to Committee who are elected are distributed among the various Standing Committees and equality is predicated among them. 9. It is not in dispute that the number of Members who are elected to the Panchayat is 12. Excluding the President and Vice President, the number of Members who were elected is 10. S. 162(2), in my view, consists of three parts. It provides that the number of Members of the Standing Committee shall be decided in a meeting of the Panchayat and it shall be decided taking into consideration the Chairman of the Committee. The Chairman of the Committee as referred, can only mean the Vice President as the Vice President is in his capacity as Vice President, an Ex Officio Member of the Standing Committee, for Finance and also its Chairman. In the case of the other Committees, the Chairman is a Member of the Committee who is elected from among the Members. The President of the Panchayat is an Ex Officio Member of every Committee without the right to vote. Therefore, the first limb of the Section would appear to me, that in reckoning the number of Members to be fixed by the Panchayat, it shall include the Vice President also. The Section provides that every elected Member other than the President and the Vice President, shall, be a Member of one of the Committee. It lastly provides that the number of Members elected to each Standing Committee shall as far as possible be equal. I agree with the contention, of the learned counsel for the petitioner that the provision contemplates equality as far as possible in relation to the number of Members elected to the Standing Committees. It cannot be in dispute that this number of Members elected, cannot take in, the President or the Vice President. This is for the reason that neither the President, nor the Vice President are elected to the Standing Committees. 10. Now, let us see what is the effect of the Circular. It cannot be in dispute that this number of Members elected, cannot take in, the President or the Vice President. This is for the reason that neither the President, nor the Vice President are elected to the Standing Committees. 10. Now, let us see what is the effect of the Circular. The complaint of the petitioner is that the provisions of S.162(2) provides that the number of Members of the Standing Committees shall be determined after excluding the President and Vice President. In other words, he would point out that the Section contemplates exclusion of both President and Vice President. But the Circular directs hat the Vice President should be included. I am unable to agree with the contention that Cl.(6) of Ext.P2 Circular is ultra vires S.162(2) in this regard. Cl.(6) of the Circular provides that it is after excluding the President of the Committee, but including the Vice President of the Committee that the number of Members to be elected to the Standing Committee that the number of Members to be elected to the Standing Committees is to be decided. I feel that this provision is in conformity with the first part of the Section which also provides that the number of Members of every Standing Committee is to be decided by including the Chairman, namely the Vice President. 11. It is to be noted that the number of Members of the Standing Committee has been fixed by the Committee in this case as 4,3,3. This can be only on the basis of the number of Members to be elected to the Standing Committees. It clearly excludes the Vice President who is the Ex Officio Chairman of the Finance Standing Committee. If that be so, this is clearly against the first limb of the Section. Apparently, what has happened is the Committee has decided upon the said number by resorting to the last limb of the Section, namely, that number of elected Members shall be as far as practicable to be equal. If the Vice President had been taken into consideration, the total number would have been eleven instead of ten, and the configuration would have been either 5,3,3 or 4,4,3, keeping in mind the principle of equal distribution. 12. No doubt, after fixing the number of Members including the Vice Chairperson, S. 162(2) provides that equality should be maintained as far as possible among the Members elected. 12. No doubt, after fixing the number of Members including the Vice Chairperson, S. 162(2) provides that equality should be maintained as far as possible among the Members elected. Therefore, in considering the equality, it is true that the Vice President is outside the zone of consideration. In other words, if the Vice Chairperson had been included for deciding the number of Members, as already stated, the position could have been 5,3,3 or 4,4,3. Applying the principles of equality among elected Members, if it had been 5,3,3 after excluding the Vice Chairperson, if he is one among the five, the position would have been 4,3,3 as elected Members and it could be said that it is equal as far as practicable. Likewise, if the composition had been 4,4,3 and Vice Chairperson is one among the four, after excluding, the figure would have been 4,3,3. A reading of Cl.(6) of the Circular would, however, create an impression that it is including the Vice President that one has to determine the number of Members to be elected to the Standing Committee and that the said number should be as far as possible equal. It is to be held that the equality is predicated as between "Members elected to each Committee", who cannot include either the President or Vice President. To the extent, the Circular is ultra vires S.162(2). 13. But, what is the effect of the interpretation of the provision on the facts of this case? Admittedly, the Panchayat decided to fix the number of Members to the Committees as 4,3,3. This is done admittedly without including either the President or the Vice President. More appropriately put, the number had been fixed without including the Chairman of the Standing Committee for Finance who is none other than the Vice President of the Panchayat. Had he been included, the figure would have been either 5,3,3 or 4,4,3. If the Panchayat had decided to fix the number as 5,3,3 or 4,4,3, then, applying the last limb of the sub-section, it could be said that the principle of equality as between "Members elected" would be satisfied in so far as after excluding the Chairman, the figure would have been 4,3,3 or 4,3,3 in both illustrations given above. If the Panchayat had decided to fix the number as 5,3,3 or 4,4,3, then, applying the last limb of the sub-section, it could be said that the principle of equality as between "Members elected" would be satisfied in so far as after excluding the Chairman, the figure would have been 4,3,3 or 4,3,3 in both illustrations given above. It cannot find that the method which is provided in cl.(7) for working out the principle of equality as far as possible, can be dubbed as ultra vires, as it takes in the Chairman, for the purpose of determining the number of Members of the Standing Committees and then provides for equality in the first place by distributing the Members among the various Committees in an equal manner and then distributing the Members remaining among the various Committees as decided by the Panchayat which may not result, no doubt, in mathematical equality which is undoubtedly what is, contemplated in the Section also. 14. In such circumstances, I am inclined to declare Cl(6) of Ext.P2 Circular as ultra vires S. 162(2) to the extent it directs that it predicates equality even by including the Vice President. To that extent, it is so declared. 15. The further question remains is whether cl.(23) of Ext.P2 is ultra vires S. 162(3). S. 162(3) provides that the number of Members in each Standing Committee as decided by the Panchayat under sub-s.(2) shall not be changed during the term of the Panchayat. Cl.(23) declares that if Standing Committees have been formed contrary to the terms of Ext.P2 Circular. Apparently, the contention is that this runs counter to the statutory injunction contained in S. 162 (3) that what is decided by the Panchayat under sub-s.(2) shall not be changed within the term of that Panchayat. Apparently, the purport of sub-s.(3) of S.162 is to be understood as referring to a decision taken under S.162 (2) in accordance with the provisions contained therein. In other words, it cannot be open to the Panchayat to take shelter under S. 162(3) and claim immunity from correction in terms of S.162(2), when the original decision is taken contrary to S.162(2). The provisions of S.162(3) should be understood as meaning that a Panchayat should not disregard the fixation of number of Members in each Standing Committee done in accordance with sub-s.(2) within the term of that Panchayat. 16. The provisions of S.162(3) should be understood as meaning that a Panchayat should not disregard the fixation of number of Members in each Standing Committee done in accordance with sub-s.(2) within the term of that Panchayat. 16. It is to be noted that S.188 of the Kerala Panchayat Raj Act, 1994 Provides power with the Government or any Officer empowered by the Government in this behalf, inter alia, to record in writing for the consideration of any Panchayat any observations in regard to the Proceedings or the duty of the Panchayat. Government is also empowered under S.191 to cancel or vary a resolution passed or a decision taken by the Panchayat, if it is in their opinion, not legally passed or taken or in excess of the powers. Under S.189, Government has power to issue general guidelines to the Panchayat in regard to the matters stated therein alone. In the result, while declaring Cl.(6) of Ext.P2 Circular as contrary to the last limb of S.162(2) of the Kerala Panchayat Raj Act, the said Clause is held not otherwise ultra vires S. 162(2) as found by me. Ext.P4 directs compliance with Ext.P2. However, Ext.P4 can be have effect only in regard to the provisions of Ext.P2 which I have not declared ultra vires. Subject to the above, the Writ Petition fails and is dismissed.