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2010 DIGILAW 1229 (BOM)

SATISH s/o BABARAO NANOTE v. STATE OF MAHARASHTRA

2010-08-24

MRIDULA BHATKAR, S.A.BOBDE

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JUDGMENT S. A. BOBDE, J. ;- Rule returnable forthwith. By the consent of the learned Counsel appearing for the respective parties, the matters are heard finally. 2. Petitioners have challenged the Government Resolution dt. 12-8-2009 by which the Government has resolved that the Committees formed under section 49 of the Bombay Village Panchayat Act, 1958 (hereinafter referred to as "the Act") such as the Committees formed for the purpose of Health, Nutrition, Water Supply and Sanitation shall compulsorily have a Sarpanch of the Gram Panchayat as the ex-officio President and a Gram Sevak as the ex-officio Secretary. The petitioners in all these cases are the Presidents and the Secretaries of various Committees constituted under section 49 of the Act and they are all likely to be displaced and have been served with orders by the respective Zilla Parishads under which they are required to hand over charge of the Committees headed by them to the respective Sarpanch and Gram Sevaks. 3. The main contention raised on behalf of the petitioners is that the power to constitute Committees in question is conferred on the Gram Sabha under section 49 of the Act and it is not open for the Government to appoint the Sarpanch and a Gram Sevak as an ex-officio President and Secretary respectively and thereby change the constitution of the Committee. The Government Resolution and the impugned action in pursuance thereof is, therefore, violative of section 49 and the Scheme of the Act. 4. Article 243-A of the Constitution of India provides as follows: "243A. Gram Sabha. - A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may, by law, provide." 5. The Bombay Village Panchayat Act, 1958 is one such law contemplated by Article 243-A of the Constitution of India which confers powers on and specifies functions of a Gram Sabha. Section 49 of the Act reads as follows: "49(1) A Gram Sabha may, in consultation with the Panchayat, from amongst the members of the Panchayat, representatives of community based organizations working in the Panchayat area, village level functionaries of Panchayat, Zilla Parishad, State Government and voters, constitute one or more Village Development Committen, by whatever name called. Section 49 of the Act reads as follows: "49(1) A Gram Sabha may, in consultation with the Panchayat, from amongst the members of the Panchayat, representatives of community based organizations working in the Panchayat area, village level functionaries of Panchayat, Zilla Parishad, State Government and voters, constitute one or more Village Development Committen, by whatever name called. (2) The term of such committee shall he co-terminus with the term of the Panchayat; (3) Such committees shall exercise such powers, discharge such duties and perform such functions of the Panchayat, as may he delegated or assigned to them by the Gram Sahha in consultation with the Panchayat, relating to the subjects and activities enumerated in Schedule I and such other works and activities related to or associated with the Panchayat as may be entrusted by the Gram Sabha, Zilla Parishad, Government or any other competent authority to the Panchayat, from time to time. The Gram Sabha may, subject to the general supervision and control of the Panchayat. regulate the procedure of such committees. (4) to (9) .........................." 6. The intention of the Legislature which may be gathered from section 49. sub-section (1) above is clearly to empower a Gram Sabha to constitute one or more Development Committee by whatever name called from amongst the members of the Panchayat, representatives of the Committee based organizations working in the Panchayat area, village level functionaries of Panchayat, Zilla Parishad, State Government and voters. The Gram Sabha has, thus, been conferred with wide discretion to appoint various categories of people on such Committee and the choice is not restricted only to the elected members of the Panchayat, though a Committee is to be constituted in consultation with the Panchayat. The Legislature has further conferred on the Gram Sabha the power to determine which functions and duties of the Panchayat may be performed by such Committees relating to the subjects and activities enumerated in Schedule I and such other works and activities related to or associated with the Panchayat as may be entrusted by the Gram Sabha, Zilla Parishad, Government or any other competent Authority to the Panchayat from time to time. Sub-section (3) further specifically confers on the Gram Sabha the power of regulating the procedure of such Committees subject to supervision and control of the Panchayat. Sub-section (3) further specifically confers on the Gram Sabha the power of regulating the procedure of such Committees subject to supervision and control of the Panchayat. Subsection (7) specifically provide that the Panchayat shall normally not exercise the powers, discharge the duties and perform the functions entrusted to the Village Development Committee by the Gram Sabha. Sub-section (8) of section 49 of the Act provides that the members of the Village Development Committee, once appointed, shall not be removed or withdrawn before the completion of their term as provided under sub-section (2). It may be noted that the present impugned action directly results in removal of the petitioners who are the Presidents and the Secretaries of the Village Development Committees appointed by the Gram Sabha before completion of the term which is co-terminus with the term of Panchayat; the constitution of rest of the Committee remaining unchanged. The Legislature has contemplated constitution of Village Development Committees for carrying out various functions and duties conferred on the Panchayat. The intention is clear that such Committees shall perform the functions and the duties conferred on them by the Gram Sabha instead of the Panchayat. The power to constitute a Committee as well as to prescribe various duties has been specifically conferred on the Gram Sabha, which is defined by sub-section (9) of section 3 as a body consisting of persons registered in the electoral rolls relating to the village comprised within the area of the Panchayat. The question is whether the Gram Sabha alone has the power to appoint the President and the Secretary of such Committee who cannot be removed by any other Authority such as Zilla Parishad acting under the instructions of the Gram Sabha. 7. Mr. N. W. Sambre, Government Pleader and Mr. Sudame. Adv. for the Zilla Parishad have submitted that though section 49 of the Act confers power on the Gram Sabha to constitute one or more Village Development Committees, the said provision does not confer any exclusive right on the Gram Sabha to appoint the President and the Secretary of a Committee. Therefore, it is within the power of the Government to issue a Government Resolution prescribing who should be the President and the Secretary of such Committee. We are not inclined to accept this submission in view of the wide import of the power to constitute a Committee conferred on the Gram Sabha. Therefore, it is within the power of the Government to issue a Government Resolution prescribing who should be the President and the Secretary of such Committee. We are not inclined to accept this submission in view of the wide import of the power to constitute a Committee conferred on the Gram Sabha. The term "to Constitute" means to give form or structure to, and to determine the constitution of. The power to constitute, thus, not only contemplates the power to form a Committee by deciding who should be a member, but also implicitly carries with it power to nominate who shall be the head of the Committee and which member of the Committee shall perform specific function such as that of a Secretary or a Treasurer. That a Committee should have a President and a Secretary has not been questioned before us. The power to nominate a President and a Secretary of a Committee must be regarded as a part of the power to constitute and in any case, incidental to such a power and must, therefore, be, of necessity, exercisable by the same authority. It would be anomalous to construe the power to nominate a President or a Secretary of a Committee as not a part of the power to constitute that committee and therefore, free for being conferred on some other authority. 8. The intention of the Legislature in enacting section 49 of the Act is to confer the power of constitution of the Village Development Committee by whatever name called on the Gram Sabha and the power to designate a member as the President, the Secretary or any other bearer is also implicitly restricted in the Gram Sabha and the members of the Village Development Committee once appointed cannot be removed or withdrawn before completion of their term as provided in sub-section (2) except by express resolution passed by the Gram Sabha in a special meeting called for the purpose or any other cause mentioned in the said sub-section. Moreover, it is settled law that once a statute prescribe that a certain thing should be done in a certain way, it shall be done in that way or not at all. In J. C. 1936 (June 16) Indian Appeals L.R. 372, Nazir Ahmad VI'. The King-Emperor. Moreover, it is settled law that once a statute prescribe that a certain thing should be done in a certain way, it shall be done in that way or not at all. In J. C. 1936 (June 16) Indian Appeals L.R. 372, Nazir Ahmad VI'. The King-Emperor. it is observed as under: '" The rule which applies is a different and not less well recognized rule namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts - Taylor vs. Taylor (1) - and although the Magistrate acting under this group of sections is not acting as a Court yet he is a judicial officer, and both as a matter of construction and or good sense there are strong reasons for applying the rule in question to section 164." 9. In the case of Cujarat Urja Vikas Nigam Ltd. vs. Essnr Power Ltd. (2008) 4 SCC 755 . it is observed that: "It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner (vide Chandra Kishore Jha vs. Mahavir Prasad (SCC para 17 : AIR para 12), Dhanajaya Reddy vs. State of Karnataka (SCC para 23 : AIR para 22), etc.). Section 86(1)(f) provides a special manner of making references to an arbitrator in disputes between a licensee and a generating company. Hence, by implication all other methods are barred." 10. Titus, the impugned resolution is contrary to law being violative of section 49 of the Act and is thus, liable to be struck down and is accordingly, quashed and set aside. The impugned action of the respondent/Zilla Parishad calling upon the Presidents and the Secretaries of the Village Development Committees appointed by the Gram Sabhas to hand over charge to the Sarpanch and the Gram Sewaks is also quashed and set aside. Rule is made absolute in the above terms. No order as to costs. Rule made absolute.