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Pralhad Baidas Chaudhari Vs. the Chief Executive Officer, - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 446 of 1964
Judge
Reported inAIR1966Bom29; (1965)67BOMLR190; ILR1965Bom566
ActsPanchayats Maharahstra Zilla Parishad and Panchayat Samities Act, 1961 - Sections 59(C), 66 and 76; Bombay Village Panchayats Act, 1958 - Sections 32; Maharashtra Zilla Parishads (President and Vice President) and Panchayat Samities (Chairman) (Current Administrative Duties) Rules, 1963 - Rule 2; Bombay Municipal Boroughs Act, 1925 - Sections 19(2)
AppellantPralhad Baidas Chaudhari
RespondentThe Chief Executive Officer, ;zilla Parishad Dhulia and ors.
Appellant AdvocateSharad Manohar, Adv.
Respondent AdvocateM.A. Rane, Adv. and ;V.H. Gumaste, Addl. Govt. Pleader
Excerpt:
.....would bring about startling results enabling a chairman ,who has been removed on account of disqualification ,to carry on the current administrative duties .in our opinion ,the suggestion made in the course of the arguments has not been well made .the term of office of a chairman may come to an end on account of various reasons ,for instance ,death ,resignation on incurring of a disqualification ,removal for misconduct ,expiry of his term of office etc......the present case. purporting to these respondents, section 66 pounds into play we in the event the samiti term expiring. it had also been contended that are petitioner is not entitled to bad the block development officer to all a meeting because that power is not vested in him even if it is assumed that the petitioner has a right to carry on the current administration duties under section 66 of the current act of 1961.(3) mr. sharad manohar for the petitioner raised two contentions before us. his first contention is back on a true construction of clause [c] of the provisional to section 59 off the act of 1961 the petitioners term of office as a member of the panchayat samiti as not come to an aimed, confidently the petitioners term of office as the chairman of the samiti also has not.....
Judgment:

Tambe, J.

(1) The question that arises for consideration in this case is whether the petitioner who had been elected first as a member of the panchayat Samiti of Shahada under section 571F. of the Maharashtra Zilla Parishad and panchayat Samiti act 1961 [here in after referred to has the act of 1961] and later on elected as the chairman of the said Samiti on 7-8-62, continues still to be a member of the said Samiti after 1-12-63and in the alternative, in spite of the fact that he has ceased to be a member of the said Samiti as and from that date, he is entitled to carry on as a chairman the current admissible duties as are prescribed by the rules. To appreciate the contentions raised, it is necessary to state certain facts. In her year 1959 a petitioner was initially elected to be a member of the group gram panchayat of the village Kalsadi in Shahada block. Later in the same year, he also became the Sarpanch of the said group gram panchayat. Under the act of 1961, the bodies constituted are Zilla Parishad and the panchayat Samiti. Section 56 off the act provides that for every block, there shall be a panchayat Samiti and the panchayat Samiti shall have all such houses as are vested in eight by the act or otherwise. Sub S (3) of S.2 of the act defines 'block' as such local area in a district as the state government may constitute to be a block under section 5. Section 57 of the act bees with the Constitution of panchayat Samiti and a reading of the section would show that the Constitution concerns of members taken gram different bodies. It is not necessary to bow into the detailed. But it would be sufficient to say that under clause (a) of sub-s (1) of S. 57 of the act of 1961. All councillors who are elected to the Zilla Parishad some the electoral divisions included in the block automatically becomes members of the panchayat Samiti. Clause [f] of the said sub section provides 'Sarpanch electoral by members of panchayat in accordance with the provisions of sub section 2 '

sub-section 2 providers 'for the purposes of clause [f] of sub section 1, each 'electoral division in a block shall be divided into two electoral colleges off members of panchayat in such manner as may be determined by the state government and the members of panchayat in each electoral colleges shall elect from amongst the Sarpanch of those panchayat, 1 Sarpanch in accordance with the rules prescribed by the state Government'.

We have already stated that the petitioner initially got edited as a member of the group gram panchayat of the village Kalsadi and later on became its Sarpanch in 1959. Under the aforesaid clause [F.] of sub section 1 of section 57 of the act of 1961, the petitioner got elected as a member on the panchayat Samiti of Shahada block. Section 64 [1] of the act provides that every panchayat Samiti shall be presided over by the chairman, who shall be elected by the panchayat Samiti from amongst members falling under clauses [a] and [f] of some Section 1 of section 57. The petitioner being a member foreign under clause [f] of sub section 1 of section 57 was eligible to be electoral as the chairman, and was duly elected as it chairman on 7-8-62. Now it may be stated that the term of the members of the village panchayat is for years. The term of the gram panchayat of delays Kalsadi came to an end in November 1963 [though the exact date is not known ]. section 32 of the Bombay Village panchayat act, 1958 [hereinafter referred to have the act of 1958] provides:

' after the expiry of his term of office, the Sarpanch shall continue to carry on the current duties of his office until such time as a new Sarpanch is elected and take over charges'.

thus, though the term of the village panchayat of Kalsadi came to an end in November 1953, the petitioner continued to carry on the current duties of the Sarpanch of the village Kalsadi by reason of the provisions of section 32 of the act of 1958 p.m. in the re constitution of the midst panchayat of Kalsadi, the petitioner again caught duly elected as its members and also known got re elected as its Sarpanch on one-12-1963. On 3rd March 1964 the block Development officer, Shahada, the second respondent herein, who under the provisions of sub section 5 of section 57 of the act of 1961, is the secretary [ex-official] of the panchayat Samiti, Shahada, wrote a letter to the petitioner. It appeared that prior to this letter, there was a discussion between the petitioner and the block development officer relating to the petitioner rights to continue as the chairman of the panchayat Samiti. In this respect, the block Development officer had written to the petitioner that on his subject he had allowed with his letter had enclosed a copy of the letter received by them from the chief executive officer, Zilla Parishad, Dhulia, the first respondent herein. It may be stated that Shahada block is in the district Dhulia. In his letter dated 29-2-64 the chief executive officer, has brown the attention of the block development officer, Shahada to the Government letter dated 3-11-62 read with section 59 (c) off the act of 1961. A copy of that letter has not been enclosed as an annexure along with the petition. But the additional government pleaders for the state has supply us a copy. The letter indicates her that the Government had taken a view that a member of a panchayat Samiti who has been elected in his capacity as a Sarpanch holds office only so long as he continues to be a Sarpanch. Under section 32 of the act of 1958, after the expiry of his term of office as the Sarpanch he does not continue to be a member of the panchayat Samiti, even though he might be capping on the current duties of his office. It may be stated that the said letter was issued prior to the amendment of section 59 C. of the act of 1961, and this view has not been pressed before us. it is sufficient to state that a dispute started between the block development officer and the petitioner as to his right to continue as a member. On receiving the letter of the block development officer dated third March 1964, the petitioner wrote a letter to the block development officer on 7th March 1964 and pointed out that under section 59 C. as amended a person falling under category in clause (f) of sub section 1 of section 57 holds office soul long as he continues to be a Sarpanch or carries on the current duties of the office of the Sarpanch. The petitioner pointed out that he was carrying out at that time the duties of the office of the Sarpanch of Kalsadi, and therefore he continued to be the Sarpanch. The petitioner also pointed out to the block development officer that section 66 of the act of 1961 is clear and it at any rate empower him to carry on the current administrative duties will of the chairman of the Samiti until his successor relieve him. Further a complaint is alternate by the petitioner in this letter that the chief executive officer letter was not here as to what action was proposed to be taken against him. The petitioner claimed therein that he was off the opening that 'there is no impediment in my way to hold the office of chairman and continue to discharge the current administrative duties'. On these grounds the petitioner in this letter directed the block development officer to convene a meeting off the panchayat Samiti or 17th March 1964 at 2 p.m. to this letter of the petitioner the block development officer sent a replied vide his litter dated 10th March 1964 stating that he has forwarded the petitioner letter to the chief executive officer and has sought further orders from him. Later the block development officer by his letter dated 13th March 1964 cent to the petitioner a copy of the letter of the chief executive officer dated 12th March 1964. The material part of the letter of the chief executive officer complained of by the petitioner is in the following terms:

' it is not correct back he [the petitioner] can remain as a member of the panchayat Samiti, because he is re elected as Sarpanch of the same village. It is necessary for him to get elected on the panchayat Samiti only after contesting the election through electoral college. as he is not even liable to continue to be the member of the panchayat Samiti he is not definitely eligible to continue to be the chairman of the panchayat Samiti.

After receiving the aforesaid letter from the block development officer, Shahada on 13th March 1964 and its enclosure namely chief executive officers letter dated that March 1964, the petitioner wrote a letter to the block development officer on 16/3/64 wherein the petitioner purporting to exercise his hours under section 76 of the act of 1961 directed the block development officer to repair agenda and notice convening the meeting of the panchayat Samiti 26th March 1964 at 2 p.m.. It appears that along with his letter the petitioner had annexed the agenda of the meeting proposed by him. The petitioner has further pointed out that any impediment would put in his way by the block development officer would be viewed very seriously by them. The block development officer by his replied dated 18th March 1964 attained pointed out to the petitioner that in view of the instructions received by them from the chief executive officer under his letter dated 12th march 1964. He was unable to convene the meeting of the panchayat Samiti as required by the petitioner. It is in these circumstances that on 23rd March 1964 this edition has been filed.

(2) In this petition the petitioner raised that the orders out by the chief executive officer on 29/2/64 and 12/3/64 be quashed. And that writ of mandamus be issued against the chief executive officer, the block development officer and the state government, respondents No. 1 to 3 respectively requiring them not to interfere with the petitioners right to be her chairman of the panchayat Samiti, Shahada until 7-8-67 or in the alternative in a new chairman is duly elected . Other relief prayed have not been pressed before us. The state government [respondent No. 3] has not filed any return in replied to the petition. It is only respondent No. 1 and 2 i.e the chief executive officer and the block development occupied, who have entered an offended in return in reply to the petition. Now in the affidavit the standard taken by these respondents is that the petitioner has feed to be a member of the panchayat Samiti with effect from 1-12-1963 and therefore he could no longer function as the chairman of the Samiti after that date. It has been further contended by these respondents that this casual vacancy is to be filled in by fresh election as provided in section 75 [1] of the act of 1961 and pending her election of the chairman, the deputy chairman is to exercise the power and perform the beauties of the chairman as provided in section 77 [1] [c] of the said act. The respondent No. 1 and 2 further contended that section 66 of the act has no application to the facts of the present case. Purporting to these respondents, section 66 pounds into play we in the event the Samiti term expiring. It had also been contended that are petitioner is not entitled to bad the block development officer to all a meeting because that power is not vested in him even if it is assumed that the petitioner has a right to carry on the current administration duties under section 66 of the current act of 1961.

(3) Mr. Sharad Manohar For the petitioner raised two contentions before us. His first contention is back on a true construction of clause [c] of the provisional to section 59 off the act of 1961 the petitioners term of office as a member of the panchayat Samiti as not come to an aimed, confidently the petitioners term of office as the chairman of the Samiti also has not come to an end. In the alternative the second contended urged by Mr. Sharad Manohar is that, even assuming that the petitioners turn of office as the chairman has come to an end, the petitioner has a right by virtue of the provisions of section 66 of the act to carry on current administrative duties of his office of the chairman of the panchayat Samiti until his successor enters upon the office and his successor not having been elected, he had every right to ask the block development officer to all the meeting. In order to appreciate the argument on the first contention, it is necessary to read the relevant provisions of section 59 act of 1961. It runs thus: 'the term of office of members of the panchayat Samiti shall be co extensive width the term of office of the councillor; provided that a member of a panchayat Samiti [a] and [b], [c] referred to in clause [f] of sub section 1 of section 57 shall hold office only so long as he continues to be a Sarpanch of carries on her current duties of the office as Sarpanch'. The first part of section refers generally to the term of office of members and provide that the term of office of members shall be co expenses with the term of office of the councillors. Sub section 9 of section 2 of the act of 1961 defines 'councillors' to mean a member of a Zilla parishad constituted under the act of 1961. Sub section 2 of section 10 of the said act provides :

' the terms of office of councillors shall except as otherwise provided in this act be five years'.

Provide that person who are councillors by perjury of that being chairman of a panchayat Samiti or of a corporate society shall hold office so long only as they continue to hold the office of that chairman. It would thus be seen that the novel term of office as provided in the main part of section 59 of the act of 1961 is five years. Power there are exceptions provided in the closet to the provision to her said section 2 is numbered term of office of members, in case of some members falling under different categories. We have already stated that the petitioner has been elected as a member of the panchayat Samiti under clause Oxford of sub section 1 of section 57. His term of office therefore is governed by clause [c] of the provision to section 59 of the said act. The question therefore that arises for consideration is the construction of clause [c] of the motion to section 59 of the said act. Now under this clause a person who is elected under clause [f] of subsection 1 of section 57 of the act is entitled to hold office of a member of a panchayat Samiti [a] sold long as he continues to be a Sarpanch, or [b maharajan carries on the current duties of the office as Sarpanch. The argument of Mr. Sharad Manohar is that it mean be backed from No. 1963 to first December 1963 the petitioner was merely carrying on the current duties off the office as Sarpanch of the village panchayat of Kalsadi, but all 1/12/63 he bought reelection as a Sarpanch of the said which panchayat. Therefore the petitioner continued to be a Sarpanch within the meaning of clause [c] of the motion to section 59 of the act of 1961.

(4) it is not possible to accept this argument in view of the clear language of clause [c] of the proviso two section 59 of the act. That clause itself make her distinction between the stated of a person when he continued to be a Sarpanch and when he carries all the current beauties of the office as Sarpanch. Obviously the first part of the clause continuance to be a Sarpanch has reference to back office of Sarpanch which entitled with two get elected to the Samiti under clause [f] of subsection [1] of section 57 of the act. His clause has therefore to be read with the provisions of section 32 of the act of 1958 under which village panchayat are constituted. That section provides:

' After the expiry of his term of office , the Sarpanch shall continue to carry on the current duties of his office until such time as a new Sarpanch is elected and takes over charge .'

During the period the Sarpanch carries on the current duties of his office , he does not continue to be a Sarpanch as such . During that period he would be an ex- sarpanch . but by the provisions of S.32 of the Act of 1958 he merely carries on the current duties of his office . The petitioner has thus ceased to be a Sarpanch in November 1963 when his term as Sarpanch has expired . From that time till 1st December 1963 he did not continue to be a Sarpanch but was an ex-Sarpanch carrying on the current duties of his office by reasons of the provisions of S.32 of the Act of 1958 . There was thus a break from November 1963 to 1st December 1963 in the tenure of the petitioner as a Sarpanch . The continuity was broken . Therefore , his being re-elected on 1/12/63 as sarpanch would not have the effect of ' his continuing to be a sarpanch' within the meaning of clause (c) of the proviso to S.59 of the Act of 1961 . It is not in dispute that as and from 1/12/63 he ceased to carry on the duties of a sarpanch . In our opinion , therefore , the petitioner has ceased to be a member of the Panchayat Samiti on 1st December 1963.

(5) It is not in dispute that on cessation of the term of the petitioners office as a member of the panchayat samiti , his term of office as chairman of the said samiti also expires . The question that next arises is whether the petitioner is entitled to carry on ' such current administrative duties of his office as may be prescribed by rules made by the State Government , until his successor enters upon his office'. Mr. Sharad Manohar argued that by reason of the provisions of S.66 of the act of 1961 , the petitioner is entitled to carry on the such current duties until his successor enters upon his office . the petitioner successor has not yet been elected . The respondents are , therefore in error in saying that the petitioner is not entitled to carry on such current administrative duties . Mr. Gumaste, the learned Additional Government Pleader , for the State , respondent No.3 as well as Mr. Rane , for the respondents Nos. 1 and 2 , on the other hand , contend that the petitioner is not entitled to carry on the current administrative duties . It is their argument that S.66 of the Act of 1961 has application only when the term of the entire village Panchayat Samiti as such expires . According to them , the term of the Panchayat samiti expires on 7-8-67 and it is only at that time that S.66 would come into play and that really was the intention of the legislature in enacting S.66 . In our opinion , in view of the clear language of S.66, it is not open to us to speculate about the legislative intend . There is no ambiguity in the language in which S.66 is couched . It is a fundamental rule of construction that it is the duty of the court to give effect to the clear and unambiguous language used by the legislature and give effect to the legislative intent as clearly expressed in the statute enacted by it . S. 66 of the Act of 1961 in terms provides ' notwithstanding the expiration of his terms' the chairman shall continue to carry on such current duties . That section does not say ' notwithstanding the expiration of the term of the panchayat samiti' . To accept the contention of M/s Gumaste and Rane , we would be required to read in this section the clause ' notwithstanding the expiration of the term of the panchayat samiti' in place of the existing clause 'notwithstanding the expiration of his term' . That would amount to rewriting the statute : that course is not open to us. Further , reference to other statutes relating to local bodies , discloses that when the legislature has intended to allow a chairman of the local body to continue to carry on current duties in the event of the expiration of the term of the body as such , it has in express terms said so. For instance we may refer to the Bombay Municipal Boroughs Act 1925 , and reading S.19 thereof , it becomes clear that a distinction is made between the expiry of the term of office of a president or vice president as contra distinguished from the expiration of the term of the municipality . Sub-s (2) of S. 19 of that Act provides :

' on the expiry of the term of office of a municipality the President and vice president shall continue to carry on the current administrative duties of their offices until such time as a new president and vice president shall have been elected and shall have taken over charge of their duties .'

Such , however is not the position in this case . The legislature in express terms conferred a power on the Chairman of the Panchayat samiti to carry on such current duties until his successor enters upon his office , notwithstanding the expiration of his term. A reference to S. 64 of the act of 1961 would show that a person who is eligible to be elected as a chairman shall be from amongst members falling under clause (a) of sub-s(1) of S. 57 are councillors directly elected to the Zilla Parishad by their respective constituencies and their term of office in accordance with the provisions of the Act is five years , while members falling under clause (f) are Sarpanch of the village panchayat elected under the provisions of the Act of 1958 and their term of office is only four years . The legislature was thus aware that there were likely to be cases where the term of office of the chairman would expire prior to the expiry of the term of the samiti . In spite of this in S.66 of the Act of 1961 it hs been provided that the chairman shall notwithstanding the expiration of his term would continue to carry on such current administrative duties . Having regard to the clear language used in S66 and having regard to other provisions to which we have made reference , in our opinion , the petitioner would be entitled to carry on such current administrative duties of his office as may be prescribed by rules made by the State Government until his successor enters upon his office .

(6) It would be noticed that the chief executive officer in his letter has taken the view that S.66 of the Act of 1961 has no application because in his opinion the Deputy Chairman would be his successor by virtue of the provisions of S. 77 of the Act. The same stand has been reiterated in the return filed by the chief executive officer , Mr. Rane, and in our opinion quite rightly , has not supported this stand before us. It was also suggested in the course of the arguments that the interpretation put by us would bring about startling results enabling a chairman , who has been removed on account of disqualification , to carry on the current administrative duties . In our opinion , the suggestion made in the course of the arguments has not been well made . The term of office of a chairman may come to an end on account of various reasons , for instance , death , resignation on incurring of a disqualification , removal for misconduct , expiry of his term of office etc. S. 66 comes into play when the term of office of a chairman has come to an end by reason of the expiration of his term and not when the term of office of a chairman comes to an end on account of any other reason. The apprehension expressed during the course of the argument is , therefore , without foundation . In our opinion , therefore , the petitioner though his term of office as a chairman has expired , is entitled to carry on the current duties as are prescribed by the rules made by the State Government , until his successor enters upon his office that is , until a new chairman is elected.

(7)The question which next arises is whether the petitioner was entitled to direct the block development officer , Shahada to convene a meeting on 26th March 1964 at 2pm. And whether the block development officer was in error in not giving effect to the direction given to him by the petitioner. Now , we have held that the petitioner is entitled to carry on the current administrative duties as are prescribed . The powers and functions of chairman of panchayat samiti are enacted in S. 76 of the Act of 1961 .Sub-s (1) of that section enumerates the duties which are obligatory and sub-s (2) enumerates the powers and functions which he may under take in his discretion. Sub-s (1) consists of clauses (a) to (d) and clause (a) provides :

' The chairman of a panchayat samiti shall (a) convene , preside at and conduct meetings of the panchayat samiti .'

It has to be seen whether this power which the chairman has under clause (a) of sub-s (1) of S.76 still remains with him as part of the current administrative duties , and that brings us to the rules prescribed by the State Government under S. 274 of the Act. In exercise of the powers conferred upon it , the State Government has framed rules called the Maharashtra Zilla Parishad ( President and Vice President ) and Panchayat Samitis ( Chairman ) ( Current Administrative Duties ) ( after the expiry of the term of office ) Rules 1963 and it is not in dispute that these rules were at the material time in operation . rule 2 provides :

' Notwithstanding the expiration of his term every President , Vice President or Chairman of the Panchayat Samiti , shall continue to carry on the until his successor enters upon his office , the current administrative duties specified in columns 1and 2 of the Table hereto .' When we turn to the table we find that the only powers and functions that are retained with the chairman on the expiry of the term of his office are those contained in clauses (b) and (c) of sub-s (1) of S.76 and clauses (a) and (b) of Sub-s (2) of the said section . It is clear that the power to convene a meeting does not fall within the prescribed current administrative duties . The petitioner , therefore , had no right to direct the block development officer to convene a meeting . The block development officer was therefore , not in error in not giving effect to that direction.

(8) In the result , the petition is partly allowed . the respondents are directed not to interfere with the petitioners right to carry on the current duties as are prescribed until his successor enters upon his office . The other reliefs sought by the petitioner are hereby rejected . In the circumstances of the case we make no order as to costs .

(9) Petition partly allowed .


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