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2019 DIGILAW 1468 (RAJ)

Veena Dashora v. State of Rajasthan

2019-05-13

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition for the following reliefs :- "a) by an appropriate writ, order or direction, the impugned notice dated 25.3.2019 (Annex.2) issued by the respondent no.2 may kindly be declared illegal and the same may kindly be quashed and set aside. b) During pendency of the writ petition, if any order is passed or any action is taken against the petitioner prejudicial to her interests, the same may kindly be quashed and set aside." 2. Brief facts of the case are that the petitioner was elected as Pradhan of Panchayat Samiti, Bhainsroadgarh, Tehsil Rawat Bhata, District Chittorgarh on 07.2.2015 for a period of five years. The election of petitioner was as a consequence of her holding majority of Ward Members while she herself was elected from Ward No.11 amongst 15 Ward Members in Panchayat Samiti, Bhainsroadgarh. Counsel for the petitioner made a limited argument that a notice for no confidence motion was moved against her on 25.3.2019 and as per the receipt endorsed, the notice was received by the petitioner on 02.4.2019. Counsel for the petitioner submits that as per Section 37 of the Rajasthan Panchayati Raj Act, 1994 the petitioner and the other Members were supposed to be given a notice of not less than seven clear days of such meeting in such manner as may be prescribed. Counsel for the petitioner submits that since only six days have elapsed between the petitioner getting notice and the meeting, therefore, the mandatory provisions of Section 37(3)(iii) of the Act of 1994 have not been complied with. Counsel for the petitioner has drawn notice of this Court to definition of "Clear days" envisaged by Rajasthan Municipalities Act, 2009, which reads as follows :- Clause (6)-"Clear days" used with reference to the period of notice under any provision of this Act, includes Sundays and other holidays but does not include the date of receipt of such notice by the person to whom it is addressed or the date specified in the notice. Counsel for the petitioner, thus, tried to make out a case that as from the time of information received of meeting seven clear days are not available, therefore, the notice is illegal and contrary to the provisions of law. 3. This Court passed passed following interim order on 04.4.2019 :- "Issue notice to respondents, returnable within two weeks. Counsel for the petitioner, thus, tried to make out a case that as from the time of information received of meeting seven clear days are not available, therefore, the notice is illegal and contrary to the provisions of law. 3. This Court passed passed following interim order on 04.4.2019 :- "Issue notice to respondents, returnable within two weeks. Notices be given 'dasti' to learned counsel for the petitioner to effect service upon the respondents. In the meanwhile the meeting sought to be convened vide notice dated 25.3.2019 shall remain stayed. List along-with SBCWP No.2991/2019." 4. Counsel for the petitioner has drawn attention of Court towards Section 37 of the Act of 1994 and Rule 21 of the Rules of 1996, which are reproduced hereunder :- "37. Motion of No-confidence in Chairpersons and Deputy Chairpersons. - (1) A motion expressing want of confidence in the Chairperson or Deputy Chairperson of a Panchayati Raj Institution may be made in accordance with the procedure laid down in the following subsections. (2) A written notice of intention to make the motion in such form as may be prescribed, signed 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, shall be delivered, in person by anyone of the members signing the notice to the competent authority. (3) The competent authority shall thereupon- (i) forward a copy of the notice, together with a copy of the proposed motion to the Panchayat in the case of a Sarpanch or Up-Sarpanch, to the Panchayat Samiti in the case of a Pradhan or Up-Pradhan and to the Zila Parishad in the case of a Pramukh or Up Pramukh; (ii) convene a meeting for the consideration of the motion at the office of the concerned Panchayati Raj Institution on a date appointed by him which shall not be later than thirty days from the date on which the notice under Sub-section (1) was delivered to him; and (iii) give to the members a notice of not less than seven clear days of such meeting in such manner as may be prescribed. Explanation-In computing the period of thirty days specified in this sub-section, the period during which the convening of a meeting is stayed by a Court shall be excluded. "Rule 21. Notice of motion of No-confidence. Explanation-In computing the period of thirty days specified in this sub-section, the period during which the convening of a meeting is stayed by a Court shall be excluded. "Rule 21. Notice of motion of No-confidence. - (1) A written notice of intention to make motion expressing want of confidence under Section 37 in the Chairperson or Deputy Chairperson of a Panchayati Raj Institution shall be in Form I and shall be delivered to Chief Executive Officer Zila Parishad in case of Sarpanch/Up-Sarpanch, Pradhan/Up-Pradhan and to the Development Commissioner in case motion is against Pramukh/Up-Pramukh. (2) Notice of meeting shall be sent by the Chief Executive Officer/Development Commissioner by post under certificate of posting not less than 15 clear days before the date of meeting and the date and the time appointed therefore in Form II to every directly elected Panch/Member at his ordinary place of residence. Copy of such notice shall also be put on the notice board of such Panchayati Raj Institution: Provided that in case of a place where there is no post office, or where service of the notice cannot be affected expeditiously, such notice shall be served through Tehsildar concerned." 5. Counsel for the respondent submits that from a conjoint reading of Section 37 of the Act of 1994 and Rule 21 of the Rajasthan Panchayati Raj Rules, 1996 it comes out that while Section would be governing the field of requirement of seven clear days but the procedure itself ought to be picked up from Rule 21 which envisages that notice of meeting shall be sent by the Chief Executive Officer by post Under Certificate of Posting not less than fifteen clear days before the date of meeting. Counsel for the respondent further clarifies that 15 clear days envisaged in Rule 21 would not apply, however, rest of the procedure which is not in contradiction to Section 37 shall be followed. Counsel for the respondent has relied upon judgment of this Court in Lalit Kumar Mali vs. State of Rajasthan and Ors., reported in 2019 (1)RLW 553 (Raj.) , relevant para whereof read as follows : "5 Rule 21 of the Rules of 1996 provides that the notice has to be dispatched for the meeting and it is no where contemplated that notice should be served on the member prior to the date of meeting to be held. 6. 6. Considering a similar point, this Hon'ble Court in Hazara Ram vs. Panchayat Samiti, Padampur and Ors., reported in RLW 1998 (2) Rajasthan, 1034 has held as under:- "There can be no denial that the expression "fifteen clear days" can only be reckoned by excluding the first and the last days. In the instant case, if the reckoning is made from the date of service of the notice to the date of the meeting, the notice falls short by one day. But then there is a rider in Rule 21 which is the extension of Section 37 of the Act which fixes the period and in that prescription made under the rule, which is as provided by the Section itself, the notice has to be dispatched fifteen clear days prior to the meeting. As contended by the learned counsel for the respondents and as stated in Para 8 of the reply, the notice of the meeting was sent to the Sarpanch and the Up-Sarpanch through the Tehsildar (Revenue) concerned on 04.04.1997 and that notice was dispatched on 04.04.1997. This being the date of dispatch, is the sufficient compliance of the Rule 21 then the rigor of section 37 is diluted in terms of this rule then it cannot be said that the notice was not dispatched as provided by law. In any case, the Division Bench of this Court and the learned Single Bench, in the judgments quoted supra have already held that such petitioner who faced the electorate and when lost the confidence is not entitled for granting indulgency by this Court under its extraordinary jurisdiction contained under Article 226 of the Constitution of India. That being the position, the petitioner is not entitled to any relief." Counsel for the respondent has further relied upon judgment of this Court in Smt. Kiran vs. State of Rajasthan and Anr., (S.B. Civil Writ Petition No.10491/2017, decided on 28.8.2017), relevant portion whereof read as follows : "Clause (iii) of sub-section (3) of section 37 of the Act of 1994 provides that competent authority shall give to the members a notice of not less than seven clear days of meeting of consideration of no-confidence motion. However, sub-rule (2) of Rule 21 of the Rules of 1996 provides that the Chief Executive Officer shall send a notice of meeting for consideration of no-confidence motion of not less than 15 clear days before the date of meeting. It appears that there is conflict between above referred provisions of the Act of 1994 and Rules of 1996. The Rules of 1996 are framed by the State Government in exercise of powers conferred by section 102 of the Act of 1994. The recognised principle of law is this that where there is a conflict between the Act and the Rules provisions of Act will prevail. In the present case, the notice of meeting for consideration of no-confidence motion against the petitioner was issued on 16.08.2017 and the date of meeting is fixed as 28.08.2017, therefore, the time between the notice and the meeting is more than seven clear days. Hence, impugned notice cannot be said to be illegal. Otherwise also, the petitioner has failed to demonstrate any prejudice with issuance of the notice by the Chief Executive Officer for consideration of no confidence motion against her of not less than 15 clear days. It is also to be noticed that none of the ward members of the Panchayat has complained of about shortfall for the period intervening between the issuance of notice and the meeting. The judgment rendered by the Co-ordinate Bench of this Court in Laxman Meena vs. The State of Rajasthan and Anr. (supra) has no application on the facts of the present case because in the said case, this Court has held that initiation of the proceeding of no-confidence motion against the petitioner therein under subsection (2) of section 37 of the Act of 1994 itself was vitiated as the persons, who have moved the no-confidence motion against the elected representative were facing enquiry regarding their disqualification, the notice of no-confidence motion was not in the prescribed form and the said notice was not received by the Chief Executive Officer of the Zila Panshad but was received by the Additional Collector, who has no authority to receive the same. In the present case, no such irregularities have been pointed out. In such circumstances, the above referred judgment is distinguishable from the facts of the present case. In view of the above discussions, this writ petition fails and hereby dismissed in limine. Stay petition also stands dismissed. In the present case, no such irregularities have been pointed out. In such circumstances, the above referred judgment is distinguishable from the facts of the present case. In view of the above discussions, this writ petition fails and hereby dismissed in limine. Stay petition also stands dismissed. " Counsel for the respondent has relied upon judgment of Hon'ble Supreme Court in Jai Charan Lal vs. State of U.P., reported in, AIR 1968 (5) SC 1968 ; relevant portion whereof read as follows : "The contentions of the appellant are based upon the provisions of sub-ss. (3) and (5 ) and it is contended that there has been a breach of these provisions and therefore the resolution is void. Three arguments in this connection have been raised before us and we shall mention them. now. The first contention is that the notice which was sent out by the District Magistrate by registered post did not allow seven clear days before the date of the meeting as required by the latter part of subsection (3). In advancing this argument the learned counsel for the appellant contends that the critical date is not the date on which the notice is dispatched but the date on which the notice is received. Since the notice was dispatched on the 17th and presumably reached the next day the learned counsel excludes the date of receipt of the notice and the date of the meeting and says that seven days did not intervene. In our judgment this is an erroneous reading of the subsection. The sub-section says that the District Magistrate shall send the notice not less than seven clear days before the date of the meeting and the word "send" shows that the critical date is the date of the dispatch of the notice. As the notice was sent on the 17th and the meeting was to be called on the 25th, it is obvious that seven clear days did intervene and there was no breach of this part of the section." Counsel for the respondent has relied upon judgment of this Court in Smt. Kamlesh Kumari vs. State of Rajasthan and Ors., reported in (2000) 2 RLW 1260 ; relevant portion whereof read as follows : "4. Rule 21(2) of the rules of 1996 requires that the Chief Executive Officer shall send the notice of meeting of no confidence by post under certificate of posting not less than fifteen clear days before the date of meeting. The intention of the legislature to frame this rule of notice to be sent under certificate of posting is to give the information to the Members to enable them to attend the meeting and participate in the proceedings of no confidence and to cast their vote in favour of against the vote of confidence. The notice is required to be sent under certificate of posting so that there is reasonable assurance that the notice has been sent on the correct address of the panchas and that the notice, in fact, is being sent. The issuance of the notice giving fifteen clear days is an essential requirement, whereas manner of service of notice is directory. It is not very much material whether the notice is being sent by registered post or by postal certificate of is being sent by any other manner so long as the notices have been served on the members giving fifteen clear days. so long as the notice is received by the members, non sending the notice by certificate of posting would not nullify the no confidence motion proceedings on such notice. It is not the case of the appellant that the notices have not been served on the members of the panchayat samiti; the only objection regarding issuance of notices is that they were not issued under certificate of posting. In our opinion, the manner of service is not mandatory requirement and substantial compliance of the same would be sufficient if the fact is being proved that the notices have been served giving requisite time of fifteen days. " 6. After hearing learned counsel for the parties this Court is of the opinion that the precedent law is consistent with the Rules of 1996, particularly, Rule 21, which prescribes for posting the notice with the gap of clear days as required. This Court has also taken note of Section 37 of the Act of 1994. The requirement of law in accordance with Section 37 is that there should be seven clear days of meeting of consideration of no-confidence motion. This Court has also taken note of Section 37 of the Act of 1994. The requirement of law in accordance with Section 37 is that there should be seven clear days of meeting of consideration of no-confidence motion. As far as procedure is concerned, it prescribes that the time period shall be from posting of notice and admittedly the notice which has been received by the petitioner in the present case is on 02.4.2019, was issued and dispatched on 25.3.2019. In the facts and circumstances of the case the petitioner is not entitled for any interference in the impugned notice as the same has been dispatched in time and a clear seven days is available with the Members to react. We also take note of the fact that out of 15 Ward Members, 12 Members have given no confidence motion and petitioner is left with support of only three members. 7. In light of the aforesaid submission no interference is called for. The writ petition is dismissed. However, in light of interim order the respondents shall fix another date for conducting exercise of no confidence motion within a period of 30 days from today. The respondents shall fix a date after informing all the Members as soon as possible.