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2017 DIGILAW 2707 (RAJ)

Banshilal Salvi v. State Of Rajasthan

2017-12-06

VIJAY BISHNOI

body2017
JUDGMENT Vijay Bishnoi, J. - The petitioner, who is a Sarpanch of Gram Panchayat, Pasoond, Panchayat Samiti, Rajsamand, District Rajsamand, has filed this writ petition being aggrieved with the notice dated 20.11.2017 (Annexure-3) issued by Chief Executive Officer, Zila Parishad, Rajsamand, whereby he called for a meeting on 04.12.2017 at 11:00 A.M. for consideration of no-confidence motion against the petitioner. 2. Learned counsel for the petitioner has argued that the impugned notice as well as the action of the Chief Executive Officer, Zila Parishad, Rajsamand are illegal and liable to be set aside because the meeting for consideration of no-confidence motion was called by him after expiry of 30 days, whereas sub( section (3) of Section 37 of the Rajasthan Panchayati Raj Act, 1994 (for short ''the Act of 1994'' hereinafter) specifically provides that meeting for consideration of no-confidence motion cannot be convened after 30 days from the date on which the notice under sub-section (1) of Section 37 of the Act of 1994 is delivered to him. 3. It is submitted that admittedly in the present case, the Ward Panch submitted application on 25.10.2017 and as per the requirement of law, the meeting for consideration of no-confidence motion was to be called within 30 days and that period expired on 24.11.2017, whereas the meeting for consideration of noconfidence motion against the petitioner has been fixed on 04.12.2017 and as such the impugned notice and the proceedings pursuant thereto are liable to be quashed and set aside. 4. It is further contended by the learned counsel for the petitioner that as per sub-rule (2) of Rule 21 of the Rajasthan Panchayati Raj Rules, 1996 (for short ''the Rules of 1996), the Chief Executive Officer is required to send notice of meeting for consideration of noconfidence motion against a Sarpanch by post under certificate of posting not less than 15 clear days before the date of meeting and the date in time appointed therefor. 5. It is argued that in the present case, the impugned notice was issued on 20.11.2017, whereas the meeting has been fixed on 04.12.2017 and from the above facts, it is clear that the notice under sub-rule (2) of Rule 21 of the Rules of 1996 falls short of 15 clear days and, therefore, on this ground also the impugned notice is liable to be set aside. 6. 6. Learned counsel for the petitioner has further submitted that as per sub-rule (1) of Rule 21 of the Rules of 1996, a written notice to make motion expressing want of confidence under section 37 in the Chairperson of Panchayati Raj Institution shall be in Form-I. It is contended that in the present case, the notice has not been submitted by the Ward Panchs in Form-I and in view of above, the impugned notice is liable to be set aside. 7. It is further submitted that as per sub-section (2) of Section 37 of the Act of 1994, it is mandatory that a written notice of intention to make motion should be accompanied with a copy of proposed motion, whereas in the present case, no proposed motion was submitted before the Chief Executive Officer and simply an application was submitted without there being any proposed motion. It is also submitted that the notice along with proposed motion is required to be submitted to the Chief Executive Officer, whereas in the present case, the Members of the Panchayat have submitted the application to the District Collector and not to the Chief Executive Officer and on account of this also, the impugned notice deserves to be quashed. 8. In support of the above contentions, learned counsel for the petitioner has placed reliance on decisions of this Court in Laxman Meena vs. State of Rajasthan & Anr., RLR 1998(1) 467, Smt. Kamlesh Kumari vs. State of Rajasthan & Ors., RLR 2000 (1) 520, Ramu Ram vs. Chief Executive Officer, Sriganganagar & Ors., RLW 2004 (3) Raj., 147. 9. Heard learned counsel for the petitioner and perused the material available on record. 10. So far as first contention of the learned counsel for the petitioner to the effect that the impugned notice and the further proceedings, pursuant to it, deserve to be quashed and set aside on the ground that the meeting for consideration of no-confidence motion against the petitioner has not been called within 30 days from the date of submission of notice as per sub-section (3) of Section 37 of the Act of 1994 is concerned, the same is without any merit as the period of 30 days provided under sub-section (3) of Section 37 of the Act of 1994 cannot be termed as mandatory. The said condition is directory only as per the law laid down by this Court in Amrit Lal vs. The State of Rajasthan, reported in RLW 1970, 164, wherein it has been held as under: "4. Having heard the learned counsel for the parties I am unable to accept the contention put forward on behalf of the petitioner. The object of the Legislature in fixing the period of 30 days is that the motion may be considered expeditiously. It this period of 30 days is held to be mandatory the very object of the enactment will be defeated as in that case it will be open to the Collector to make the motion lapse by not calling a meeting for its consideration within 30 days. In Montreal State Railway vs. Normandin, AIR 1958 Allahabad 374 their Lordships of the Privy Council held as follows: "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those who are entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only." 5. I accordingly hold that the period of 30 days provided under section 39(3)(ii) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, is directory and not mandatory." 11. The second contention of the learned counsel for the petitioner to the effect that as per sub-rule (2) of Rule 21 of the Rules of 1996, it is mandatory on the part of the Chief Executive Officer to send notice of meeting for consideration of noconfidence motion by post under certificate of posting not less than 15 clear days before the date of meeting is also without any merit. 12. It is to be noticed that clause (iii) of sub-section (3) of Section 37 of the Act of 1994 provides that the competent authority shall give to the members a notice for consideration of no-confidence motion of not less than 7 clear days. It is settled that where there is any contradiction in the provisions of the Act and the Rules, the provisions of the Act will prevail. It is settled that where there is any contradiction in the provisions of the Act and the Rules, the provisions of the Act will prevail. If we examine the impugned notice, it would be clear that the same has been issued to the members of not less than 7 clear days. Hence, the second contention of the learned counsel for the petitioner is liable to be rejected. 13. Further argument of the learned counsel for the petitioner is to the effect that no written notice has been submitted by the Members of Panchayat in Form-I as required under Rule 21(1) of the Rules of 1996. The said contention of the learned counsel for the petitioner is also liable to be rejected in view of the provisions of Section 113 of the Act of 1994. 14. Section 113 of the Act of 1994 reads as under: "113. Validity of Notice.- No notice issued under this Act shall be invalid on account of any defect or omission in its form." 15. A Division Bench of this Court in Banvir vs. State of Rajasthan reported in 2000 (1) WLC (Raj.) 736 has held as under: "8. It is then submitted by the counsel for the petitioner that the notice of no confidence was not given in prescribed form. Section 113 of the Act of 1994 is a complete answer to this argument. Section 113 prescribes that no notice issued under Panchayat Act shall be invalid on account of any defect or omission in its form. The notice cannot be held defective because it is not issued in the prescribed form." 16. In view of the above, the aforesaid argument of the learned counsel for the petitioner is also rejected. 17. Further contention of the learned counsel for the petitioner to the effect that the Members of Panchayat, on whose instance, the proceedings of no-confidence against the petitioner has been initiated, have not passed any proposed motion and also not submitted the same to the competent authority, is also liable to be rejected. 18. Along with impugned notice issued by the Chief Executive Officer under sub-rule (2) of Rule 21 of the Rules of 1996, a copy of a document addressed to the District Collector as well as the Chief Executive Officer is enclosed. 18. Along with impugned notice issued by the Chief Executive Officer under sub-rule (2) of Rule 21 of the Rules of 1996, a copy of a document addressed to the District Collector as well as the Chief Executive Officer is enclosed. In the said document, the subject is mentioned as From the wholesome reading of the said document, it can be gathered that it is a copy of proposed motion, wherein 8 Members of the Gram Panchayat, Pasoond have expressed their intention to make the motion of no confidence against the petitioner. Hence, it cannot be said that the proposed motion has not been submitted by the Members of the Gram Panchayat to the competent authority. 19. The last contention of the learned counsel for the petitioner to the effect that Members have not submitted notice expressing noconfidence in the petitioner along with the proposed motion to the Chief Executive Officer, who is the competent authority but to the District Collector, is also having no force. 20. From the document annexed with the impugned notice, it is clear that it is addressed to the District Collector as well as the Chief Executive Officer, Zila Parishad, Rajsamand. The petitioner has even not contended that the Chief Executive Officer was not present on the day in the office when the Members had moved the alleged motion against the petitioner. 21. It is also noticed that the impugned notice has been issued by the Chief Executive Officer and as such it would be deemed that the Members have submitted the motion expressing no-confidence in the petitioner to the Chief Executive Officer only. 22. The law laid down in the judgments cited by the learned counsel for the petitioner are not applicable in the present case and, therefore, the same are of no help to the petitioner. 23. In Ramu Ram vs. Chief Executive Officer, Sriganganagar & Ors. (supra) the Division Bench of this Court has found that even there was no proposed resolution expressing no-confidence against the Chairperson and taking into consideration the said fact, the Division Bench of this Court has held that when the proposed motion was not presented before the competent authority, the proceedings initiated for no-confidence motion are bad. (supra) the Division Bench of this Court has found that even there was no proposed resolution expressing no-confidence against the Chairperson and taking into consideration the said fact, the Division Bench of this Court has held that when the proposed motion was not presented before the competent authority, the proceedings initiated for no-confidence motion are bad. However, in the present case, the copy of the proposed motion was very much accompanied with the notice and the same has also been supplied to the petitioner along with the impugned notice. 24. In Smt. Kamlesh Kumari vs. State of Rajasthan & Ors., (supra), a Division Bench of this Court has not agreed with the proposition of law laid down by the learned Single Judge, wherein it was held that notice in writing signed by at least /rd of the directly elected members to the competent authority would be directory provision and noncompliance of it would not entail nullification of the further proceedings of no-confidence motion and has held that a written notice of intention to make motion of no-confidence signed by not less than /rd of directly elected members, to competent authority is necessarily be supplied with for commencement of the proceedings for no-confidence motion. 25. In the present case, the petitioner has failed to demonstrate that /rd directly elected members of the Gram Panchayat, Pasoond have not submitted any written notice before the competent authority. 26. The facts of Laxman Meena vs. State of Rajasthan & Anr. (supra) are entirely different. In that case, the no confidence motion was not even submitted to the Chief Executive Officer and the evidence was produced that on the day when the motion was presented, the Chief Executive Officer was not even present at the place where it was moved. Though in the said case, the learned Single Judge considered the fact that the notice was not submitted by the members in the format provided in Form-I, however, it appears that no one had invited attention of the Court towards section 113 of the Act of 1994. 27. More over, as stated earlier, in view of law laid down by the Division Bench of this Court in Banvir vs. State of Rajasthan (supra), no notice issued under the Panchayati Raj Act shall be invalid on account of motion in its form as per section 113 of the Act of 1994. 28. 27. More over, as stated earlier, in view of law laid down by the Division Bench of this Court in Banvir vs. State of Rajasthan (supra), no notice issued under the Panchayati Raj Act shall be invalid on account of motion in its form as per section 113 of the Act of 1994. 28. Apart from that, way back in 1972, the Division Bench of this Court in Bhurekhan vs. State of Rajasthan & 14 Ors., 1976 WLN 73, dealing with the case regarding noconfidence motion against a Sarpanch has held as under: "3. Learned Government Advocate and the counsel appearing on behalf of the respondents raised a preliminary issue before this Court that even if this Court comes to the conclusion that the officiating Tehsildar had no authority to preside over the meeting, the court should not interfere with the judgment of the learned single Judge who has dismissed the appellant''s writ petition on a consideration well founded in the democratic world and, therefore, the appeal should be dismissed without going into the merits of the matter raised by the appellant. In support of this preliminary objection reliance has been placed on an authority of this Court in Radhey Shyam vs. Vijai Singh, District Magistrate, Ganganagar and Ors., 1972 WLN 772 . 4. The facts mentioned above have not been disputed by the parties. It is also admitted by Mr. Agrawal appearing on behalf of the appellant that the objection raised by him is undoubtedly of a highly technical nature but his contention is that in democracy when the meeting is to be conducted in a prescribed manner, it should be done strictly in accordance with the procedure laid down by the law otherwise in the eye of law the meeting conducted in contravention of the prescribed procedure shall be deemed as if no meeting had ever taken place and, therefore, if the meeting was presided over by an officer who was not competent under the law, it cannot be said that the intention of the members was correctly found out, 5. In Radhey Shyam''s case 1972 WLN 772 the notice for convening a meeting issued by the Collector was defective inasmuch as 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 18th September, 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 the exercise of a jurisdiction which is 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 extraordinary 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." 6. It was further observed in that case "In order to create healthy conventions for the functioning of democracy in the country, it is necessary that this Court should be slow to help the person in his attempts to stick to his elected office even after the unequivocal declaration of the majority that he has lost their confidence, the court should show its reluctance to allow such persons to invoke this extraordinary jurisdiction." 7. In the instant case out of 12 members 9 persons voted for the motion of noconfidence against Bhure Khan appellant. It is clear from this voting that Bhure Khan had lost confidence of 3/4th of the members of the Panchayat. Bhure Khan was present in the Panchayat when the motion was moved. He does not say that the Presiding Officer in any manner showed any bias against him therefore this technicality that the meeting was presided over by an officiating Tehsildar and not by the Tehsildar himself cannot invoke any sympathy in favour of Bhure Khan. Bhure Khan was present in the Panchayat when the motion was moved. He does not say that the Presiding Officer in any manner showed any bias against him therefore this technicality that the meeting was presided over by an officiating Tehsildar and not by the Tehsildar himself cannot invoke any sympathy in favour of Bhure Khan. The discussions in the above cited case clearly indicate that the agency of the court cannot be employed as an instrument to stick to a job where the petitioner or the appellant has lost his right because of the fact that the members have lost faith in him and, therefore, in such circumstances this Court should not allow itself to act as a medium for permitting unhealthy convention for the working of democratic institution. We are therefore, inclined to hold that the preliminary objection raised by the opposite party must prevail." 29. The ratio laid down by the Division Bench of this Court in the above referred case applies to the present case also. Eight members of the Gram Panchayat have filed noconfidence motion against the petitioner. It is not the case of the petitioner that those eight members do not constitute 1/3rd of directly elected members of the Gram Panchayat, Pasoond. This Court while exercising discretionary powers is not inclined to interfere in the matter purely on technical grounds. In view of the above discussions, the writ petition fails and is hererby dismissed in limine. Application No. 6354/2017 filed on behalf of applicants for impleading them as party respondents also stands dismissed.