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2019 DIGILAW 1586 (RAJ)

SURESH KUMAR v. STATE OF RAJASTHAN

2019-05-21

ABHAY CHATURVEDI, SANGEET LODHA

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JUDGMENT : Sangeet Lodha, J. This special appeal is directed against the interim order dated 11.4.19 passed by the learned Single Judge of this court in S.B.C. Writ Petition No. 4924/19, which reads as under: "No confidence motion meeting shall not be held until this Court makes an order. However, it is made clear that the notice issued by the CEO shall not become redundant till then." 2. The facts relevant are that the third respondent-writ petitioner, was declared elected as Pradhan, Panchayat Samiti, Sri Dungargarh in elections held on 7.2.15. A motion expressing want of confidence in the third respondent as Chairperson of Panchayat Samiti, Sri Dungargarh was made by way of written notice dated 19.2.19, duly signed by 16 directly elected members of the Panchayat Samiti, the appellants herein, to the competent authority i.e. Chief Executive Officer, Zila Parishad, Bikaner. The competent authority convened the meeting for consideration of the motion in the office of Panchayat Samiti on 28.2.19. The members of the Panchayat Samiti were served with the notice dated 21.2.19 of the meeting convened as aforesaid, in the manner prescribed. As per mandate of provisions of sub-section (3) (iii) of Rajasthan Panchayati Raj Act, 1994 (for short "the Act"), the competent authority was under required to give notice to the members of not less than clear seven days of such meeting. Since, the period of notice issued as aforesaid was short by one day, the third respondent questioned the legality thereof by way of Writ Petition No. 2991/19 before this court. The learned Single Judge of this court vide order dated 27.2.19 while issuing notices to the respondent therein, passed an interim order in favour of the writ petitioner in the following terms: "In the meanwhile and until further orders, the meeting sought to be convened on basis of 21.02.2019, on 28.02.2019 shall remain stayed." 3. During the pendency of the writ petition, the notice dated 21.2.19 was withdrawn by the Chief Executive Officer, Zila Parishad, Bikaner vide order dated 7.3.19. Consequently, the writ petition preferred by the writ petitioner was dismissed by the learned Single Judge vide order dated 3.4.19 as having become infructuous with the observations as under: "3. This Court after examining the order dated 7.3.2019 finds that the no-confidence motion as challenged is not in existence on the date. Consequently, the writ petition preferred by the writ petitioner was dismissed by the learned Single Judge vide order dated 3.4.19 as having become infructuous with the observations as under: "3. This Court after examining the order dated 7.3.2019 finds that the no-confidence motion as challenged is not in existence on the date. However, without prejudice to the rights of either parties, the present writ petition is dismissed as having become infructuous with liberty to the petitioner to challenge any fresh proceedings prejudicial against him. 4. Stay Petition No. 2902/2019 and Application No. 1/2019 also stand dismissed accordingly." 4. The legality of the order dated 7.3.19 issued by the Chief Executive Officer, Bikaner as aforesaid, was questioned by the third respondent by way of a writ petition being No. 4924/19. 5. It is pertinent to note that the writ petition questioning the legality of order dated 7.3.19 was filed by the third respondent before this court on 1.4.19. The learned Single Judge after due consideration, vide order dated 4.4.19 issued notices to the respondents. In the meantime, on 3.4.19, the Chief Executive Officer, Zila Parishad, Bikaner issued a notice convening a meeting for consideration of the motion at the office of the Panchayat Samiti, Zila Parishad on 15.4.19 at 11 a.m. In these circumstances, the third respondent preferred a second stay petition being No. 5134/19 in the said writ petition. The learned Single Judge on 11.4.19, while granting time to the counsel for the State to complete his instructions, passed the interim order in favour of the third respondent in the terms indicated above. 6. Aggrieved by the order dated 11.4.19, this special appeal is filed on behalf of the appellants herein, all the 16 members of Panchayat Samiti, who had submitted the written notice of intention to make a motion expressing want of confidence in the third respondent, the Chairperson of the Panchayat Samiti, Sri Dungargarh. The appeal is accompanied by an application seeking leave to appeal as the appellants were not impleaded as party respondents in the writ petition pending before the learned Single Judge. 7. The appeal is accompanied by an application seeking leave to appeal as the appellants were not impleaded as party respondents in the writ petition pending before the learned Single Judge. 7. On 12.4.19, while issuing notices of application seeking leave to appeal as also of special appeal and stay petition, an interim order was passed by this court in the following terms: "In the meanwhile, effect and operation of the order dated 11.4.19 passed by the learned Single Judge of this Court in S.B. Civil Writ Petition No. 4924/19 shall remain stayed. The meeting for consideration of the No Confidence Motion shall be held as scheduled i.e. on 15.4.19, however, the result shall not be declared without permission of this Court." 8. The matter was finally heard at this stage with the consent of the learned counsels appearing for the parties. 9. Having regard to the facts and circumstances of the case noticed as above, we are of the considered opinion that the rights of the appellants who have moved the motion are directly affected by the order under appeal whereby the official respondents have been restrained from holding the meeting for consideration of the motion. In this view of the matter, the application is allowed. The leave to appeal is granted. 10. Mr. G.R. Punia, learned Senior Advocate appearing for the appellants contended that period of the notice initially issued by the Chief Executive Officer, Zila Parishad, Bikaner convening the meeting for consideration of motion was apparently short by one day and therefore, the same was rightly withdrawn vide order dated 7.3.19. Learned counsel submitted that on account of the withdrawal of the notice to cure the deficiency, no confidence motion moved by the elected members in conformity with the provisions of the Act, does not stand lapsed. Learned counsel submitted that as a matter of fact, writ petition preferred by the third respondent questioning the legality of the notice having been dismissed by the learned Single Judge as infructuous, the Chief Executive Officer, Zila Parishad, Bikaner was under an obligation to convene the meeting within the stipulated time in conformity with the provisions of Section 37 of the Act and thus, the learned Single Judge has seriously erred in staying the holding of the meeting already convened by the competent authority. Learned counsel submitted that admittedly, in the writ petition (No. 4924/19) preferred, the third respondent has questioned the legality of order dated 7.3.19 issued by the Chief Executive Officer withdrawing the notice dated 21.2.19 and the subsequent notice issued convening the meeting for consideration of the motion is not even under challenge in the writ petition filed. Drawing the attention of the court to the provisions of Section 37 of the Act, learned counsel submitted that once a notice expressing no confidence motion in the Chairperson of the Panchayati Raj Institution is given by the elected members, the consideration thereof must reach to a logical end and its consideration cannot be deferred for indefinite period. Learned counsel submitted that in the meeting convened all the members present have voted for the motion and therefore, the third respondent is bound to be ousted from the office. Learned counsel would submit that it is settled principle of democracy that the persons who has lost the confidence of the members of the democratic institution should not be permitted to stay against the will of the members of that institution and in such matter, the court should be slow and the reluctant to invoke the extra ordinary jurisdiction and thus, the learned Single Judge has seriously erred in halting the process of consideration of motion. In support of the contention, learned counsel relied upon the decisions of this court in the matter of "Bhure Khan v. State of Rajasthan & Ors.", AIR 1976 Raj. 184 , "Kedar Nath Saini v. State of Raj. & Ors.", 2004 WLC (Raj.) 372 and "Lalit Kumar Lali v. State of Rajasthan & Ors." (D.B. Special Appeal Writ No. 1127/17, decided vide judgment dated 2.2.18). Learned counsel submitted that the result of consideration of the motion deserves to be declared subject to the decision of the writ petition pending before the learned Single Judge. 11. On the other hand, the counsel appearing for the third respondent submitted that once the competent authority has acted upon the written notice submitted expressing the intention to make no confidence motion and convened the meeting, he becomes functus officio and cannot withdraw the notice convening the meeting for any reason whatsoever. 11. On the other hand, the counsel appearing for the third respondent submitted that once the competent authority has acted upon the written notice submitted expressing the intention to make no confidence motion and convened the meeting, he becomes functus officio and cannot withdraw the notice convening the meeting for any reason whatsoever. Learned counsel submitted that the meeting once convened even cannot be adjourned and thus, the action of the competent authority in withdrawing the notice and issuing fresh notice to convene the meeting is ex facie without jurisdiction. Thus, on the facts and in the circumstances of the case, the learned Single Judge has not committed any error in restraining the official respondents from holding the meeting pursuant to the notice issued. Learned counsel submitted that the matter is still pending consideration before the learned Single Judge and therefore, there is no reason why the order impugned should be interfered with invoking the intra court appeal jurisdiction. Learned counsel submitted that the third respondent has already preferred an application before the learned Single Judge seeking leave to amend the petition incorporating the challenge to the notice dated 3.4.19 issued by the competent authority, which is pending consideration. 12. Mr. K.K. Bissa, learned Additional Government Counsel has supported the action of the competent authority in issuing the fresh notice convening the meeting for consideration of the no confidence motion. 13. We have considered the submissions of the learned counsels for the parties and perused the material on record. 14. Indisputably, by way of first writ petition the third respondent had questioned legality of notice dated 21.2.19 whereby the meeting for consideration of no confidence motion was scheduled on 28.2.19. As per the mandate of the provisions of sub-section (3) (iii) of Section 37 of the Act, the competent authority is under an obligation to give notice to the members of not less than seven clear days of the meeting convened for consideration of no confidence motion and thus, apparently, notice being not of clear seven days was not in conformity with the said provision. But then, the lapse on the part of the competent authority in issuing the notice in conformity with the provisions of Section 37 cannot have an effect of frustrating the no confidence motion moved by the elected members in conformity with the provisions of sub-section (2) of Section 37 of the Act. But then, the lapse on the part of the competent authority in issuing the notice in conformity with the provisions of Section 37 cannot have an effect of frustrating the no confidence motion moved by the elected members in conformity with the provisions of sub-section (2) of Section 37 of the Act. As per the mandate of the provisions of sub-section 3(ii) of Section 37 of the Act, the meeting for consideration of the motion is required to be convened within a period of 30 days and as per explanation attached thereto in computing the period of 30 days specified as aforesaid, the period during which the convening of the meeting is stayed by a court shall be excluded. Admittedly, during the period from 27.2.19 to 3.4.19, the interim order passed by the court staying the meeting convened for consideration of motion on 28.2.19 remained operative. Further, immediately after disposal of the writ petition wherein the interim order was operative, the competent authority has issued the notice on 3.4.19 convening the meeting on 15.4.19 and thus, if the period during which the interim order passed by the court remained operative is excluded, the meeting convened is well within the stipulated time. Moreover, as on the date of passing of the interim order, the notice issued by the competent authority convening the meeting was not even impugned in the writ petition. Thus, on the facts and in the circumstances of the case, there was no prima facie case in favour of the third respondent so as to make him entitle for the interim relief staying the consideration of the motion in the meeting convened. 15. There is yet another aspect of the matter. It is settled law that in the democratic institution, the will of the majority should prevail. It is a matter of record that out of 21 members of the Panchayat Samiti, Sri Dungargarh, 16 members have signed the written notice expressing want of confidence in the Chairperson, the third respondent herein and therefore, it would not be appropriate to defer the consideration of the motion for indefinite period, moreso when the notice issued by the competent authority is prima facie found to be in conformity with the provisions of Section 37 of the Act. 16. 16. In compliance of the interim order passed by this court, the no confidence motion has already been considered in the meeting convened on the scheduled date and the same was put to vote, however, the result of the same has not been declared as the respondents were restrained from declaring the result without permission of the court. 17. In view of the discussion above, we are of the considered opinion that the order impugned passed by the learned Single Judge restraining the respondents from convening the meeting deserve to be set aside. The result of the consideration of no confidence motion in the meeting convened on the scheduled date pursuant to the interim order passed by this court deserves to be declared subject to decision of the writ petition pending before the learned Single Judge. 18. Accordingly, the special appeal is allowed. The order dated 11.4.19 passed by the learned Single Judge is set aside. The respondents are permitted to declare the result of the consideration of no confidence motion held in the meeting convened on the date as scheduled i.e. 15.4.19, subject to decision of the writ petition pending before the learned Single Judge. It is made clear that any observations made by this court while arriving at the conclusion that the respondent has no prima facie case in his favour for grant of interim relief as prayed for, shall not come in his way in any manner and obviously, the writ petition will be decided on its own merits. No order as to costs.