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P. Venkata Somaraju and ors. Vs. Principal Munsif-magistrate, Bhimavaram, West Godavari Dist. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 599 and 746 of 1966
Judge
Reported inAIR1968AP22
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Andhra Pradesh Gram Panchayat Act, 1964 - Sections 16, 17, 18, 19, 20, 22, 33(2), 33(3), 33(5), 33(6), 33(7), 51 and 51(3) ; Andhra Pradesh Gram Panchayat Rules - Rule 49, 49(2) and 49(4); Hyderabad Gram Panchayats Act, 1956 - Sections 19 and 24; Constitution of India - Article 226; Code of Criminal Procedure (CrPC) , 1898 - Sections 439; Madras District Municipalities Act - Sections 47, 52 and 60; Government of India Act - Sections 107; Election Rules - Rules 11, 12(2), 26(1) and 28(1); Local Boards Act; County Courts Act, 1959
AppellantP. Venkata Somaraju and ors.
RespondentPrincipal Munsif-magistrate, Bhimavaram, West Godavari Dist. and ors.
Appellant AdvocateP. Kodandaramayya, ;M. Adinarayana Raju and ;M. Krishnam Raju, Advs. and ;P.A. Choudary and ;S. Surya Prakasa Rao, Advs. in WP No. 746 of 1966
Respondent AdvocateThird Govt. Pleader, ;P.A. Choudary and ;Surya Prakasa Rao, Advs. in WP No. 746 of 1966
Excerpt:
(i) civil - maintainability of petition - section 115 of code of civil procedure, 1908 - meeting to consider no confidence motion stayed - petition filed against stay - petitioner contended it as beyond scope of section 22 of a. p. gram panchayat act, 1964 - respondent challenged maintainability of said petition - petition maintainable - district munsif acted as subordinate court and not as persona designata - his order can be revised by high court - order staying meeting quashed as beyond jurisdiction of district munsif. (ii) constitution - issuance of writ - article 226 of constitution of india - high court has power to issue writ under article 226 - same cannot be taken away by law enacted by parliament or state legislature - high court can issue writ against lower courts as they must.....order1. kallakuru village panchayat has 9 members. elections were held on 30-5-1964. the 3rd respondent in w. p. no 599 of 1966 was elected as sarpanch subsequently six members out of the total strength of 9 gave notice expressing their intention to move a no-confidence motion under section 51 of the andhra pradesh gram panchavat act. 1964, hereinafter referred to as 'the act.' on 16-3-1966 accepting the motion, the revenue divisional officer issued a notice on 24 3 1968 fixing the date of the meeting as 12-4-66 where at the no-confidence motion was to be considered. the 3rd respondent sarpanch filed o. p. no 33 of 1966 on the file of the principal munsif-magistrate's court. bhimavaram under section 22 of the act alleging inter alia that one of the members has incurred disqualification.....
Judgment:
ORDER

1. Kallakuru Village Panchayat has 9 members. Elections were held on 30-5-1964. The 3rd respondent in W. P. No 599 of 1966 was elected as Sarpanch subsequently Six members out of the total strength of 9 gave notice expressing their intention to move a no-confidence motion under Section 51 of the Andhra Pradesh Gram Panchavat Act. 1964, hereinafter referred to as 'the Act.' on 16-3-1966 Accepting the motion, the Revenue Divisional Officer issued a notice on 24 3 1968 fixing the date of the meeting as 12-4-66 where at the no-confidence motion was to be considered. The 3rd respondent Sarpanch filed O. P. No 33 of 1966 on the file of the Principal Munsif-Magistrate's Court. Bhimavaram under Section 22 of the Act alleging inter alia that one of the members has incurred disqualification for not attending three consecutive meetings. The Sarpsnch also filed an application during the pendency of the said O. P. for the issue of an interim injunction directing the said member not to vote at the meeting where the no-confidence motion had to be considered The Munsif-Magistrate issued an ex parte interim injunction. On the application of the said member, however, on 11-4-1966 the interim injunction was vacated by the Munsif-Magistrate He. however instead directed that the meeting for the consideration of the no-confidence motion itself be stayed till the final disposal of the O. P. W P No 599 of 1966 seeks to bring up the said order of the Munsif-Magistrate and to quash the same. The Writ Petition was admitted on 10-4-1966 and this Court directed interim suspension of the operation of the order passed by the Munsif-Magistrate. In view of this order, the Revenue Divisional Officer again issued a notice fixing 28-4-1966 as the date of the meeting where the no-confidence motion will be considered.

2. Before the meeting was held, the Sarpanch filed W. P. No 746 of 1966 on 10-6-1966 questioning the convening of the meeting for the consideration of the no-confidence motion on 38-4-1966 This Writ Petition was admitted on 11-6-1966 and interim stay of the meeting was granted by this Court. Both these Writ Petitions, however came before this Court for ordering the miscellaneous petitions finally On 16-6-1966 this Court directed that the meeting to consider the no-confidence motion may be held but the operation of the decision taken that would be suspended till the final disposal of the Writ Petitions.

3. Against this order. Writ Appeal No. 114 of 1966 was filed and the appellate Court granted stav of the meeting itself until the final disposal of the Writ Petitions on 14-7-1966.

4. In W. P. No. 599 of 1966. the principal contention of Mr. P. Kodandaramayya, the learned counsel for the petitioners, is that the Munsif-Magistrate acted without jurisdiction in granting stay of the meeting to consider the no-confidence motion His contention is that such an order would be beyond the scope of Section 22 of the Act. In W. P. No. 746 of 1966 the contention of Mr. P. A. Choudary, the learned counsel for the petitioner Sarpanch. is that as the meeting now to consider the no-confidence motion could be held only after the expiry of 60 days from the date when the original motion was given to the Revenu' Divisional Officer by the six members, such a meeting would be bad under Section 61 of the Act. He therefore contends that a fresh motion will have to be Riven by the respondents if they so desire and it is only upon such motion that a meeting to consider the same could be convened. The motion having lapsed it cannot be considered at any subsequent meeting.

5. Before I deal with these contentions, 1 will dispose of the preliminary objection taken by Mr. P. A. Choudary in regard to the maintainability of WP No. 599 of 1966. It was contended by him that the order passed by the Munsif-Magistrate under Section 22 of the Act is an order revisable by this Court under Section 115, C.P.C. He also contends that no writ of certlorari can issue to an inferior court of civil jurisdiction. Reliance ia this connection was placed on a decision of the Madras High Court reported in Issardas S. Lulla v. Smt. Hari, : AIR1962Mad458 . Section 22 of the Act relates to the authority to decide questions of disqualifications of members According to that section, where an allegation is made that any person who is elected or nominated as a member of a gram pan-chayat is not qualified or has become dig-qualified under Sections 16, 17, 18, 19 or Section 20 by any voter or authority to the executive authority in writing and the executive authority has given intimation of such allegation to the member and such member disputes the correctness of the allegation so made, or where any member himself entertains any doubt whether or not he has become disqualified under any of those sections such member or any other members may, and the executive authority, at the direction of the gram panchayat or the Commissioner shall, within a period of two months from the date on which such intimation is given or doubt is entertained, as the case may be, apply to the District Munsif having jurisdiction over the area in which the office of the gram pan-chayat is situated for decision Sub-section (2), which is relevant, enjoins that pending such decision, the member shall be entitled to act as if he is qualified or were not disqualified.

16. There is no provision in the Act providing for the settlement of election disputes. Rule 49 of the Rules relating to conduct of election of members, Sarpanch. Upa-Sarpanchof Gram Panchayat. however, provides that 'save as otherwise provided, no election held under the Act whether of a member. Sarpanrh or Upa-Sarpanch of a gram panehayat shall be called in question except by an election petition presented in accordance with these rules to an election court as defined in Sub-rule (2) by any candidate or elector against the candidate who has been declared to have been dulv elected (hereinafter called the returned candidate) or if there are two or more returned candidates against all or any such candidates' According to Sub-rule (2) of that Rule, the District Munsif having territorial jurisdiction over the place in which the office of the gram Panchayat is situated, or, if there is more than one such District Munsif, the Principal District Munsif shall be the election court. According to Sub-rule (4) of that Rule, an election court exercising jurisdiction under these rules shall be deemed to exercise such jurisdiction as a persona designata find not in his capacity as a District Munsif.

7. In so far as Rule 49 is concerned, the rule itself makes it abundantly plain Ihat the District Munsif exercising the power under Rule 49 acts not as a Court but acts as a persona designate Any order passed by an election court under the rules while exercising the power under Rule 49 would not thus be revisahle by this Court tmder Section 115. C. P. C.

8. Whether the District Munsif hearing the election dispute is a persona designata or is a court whose order is amenable to a revisional Jurisdiction of this court under Section 115, C. P. C. came to be considered in Deivana Yagam Pillai v. Mohidden Rowther. AIR 1923 Mad 169. That was a case under the Madras District Municipalities Act. But the provisions are in pan materia. The question before Devadoss, J., was when the District Judge or Subordinate Judge entertains or refuses to entertain an election petition, whether he acts as 'court' as defined by the C. P. C or as mere officer who is invested with jurisdiction to try a particular class of cases, viz election petitions. Noting that Sections 47 and 60 of the Madras District Municipalities Act used the word 'Court', the learned Judge observed that the rule framed under the Act used only the words 'District and Subordinate Judge'. The learned Judge therefore reached the conclusion that by the use of tbe words 'District Judge' and 'Subordinate Judge', the Legislature did not intend to mean that the 'District Court' and 'Sub-Court' would have jurisdiction Re-ferring to the previous authorities the learned Judge thought that it is impossible to contend that the Legislature intended to treat the officers who arc to try an election case as courts eitherwithin the meaning of Section 115, C.P.C. or Section 107 of the Government of India Act. Although the learned Judge was of the opinion in that case that the Subordinate Judge's order was utterly illegal, even then the learned Judge refused to interfere as he was of the opinion that the High Court had no jurisdiction to interfere with orders passed on petitions pre-sented under the rules for the decision of disputes as to the validity of an election.

9. The same question came in for consideration before Jackson, J. Athimoolan Ser-vai v. Gopala Krishna. AIR 1927 Madras 921. That was a case again under the Madras District Municipalities Act The learned Judge considered Section 52 and rule 11 of the Election Rules made under the said Act. Dealing with the objection that the High Court has no jurisdiction to interfere. the learned Judge observed :

'There is direct authority in Ahmad Thambi Maraicair v. Basava Maracayar, AIR 1923 Mad 254 which follows Ramaswami Goun-dan v. Muthu Velappa Goundan, AIR 1923 Mad 192, on the principle that in this matter the District Municipalities and the Local Boards Acts are analogous. I agree, and the analogy attracts the authority of the Full Bench ruling in Parthasaradhi Naidu v. Kot-eswara Rao, AIR 1924 Mad 561. In that case, the learned Chief Justice was led to decide that the Judge was not a persona designate, by a reference to two rules, a rule permitting him to transfer the enquiry to a subordinate Court, and a rule that the ballot papers shall be sealed and not again inspected except under the orders 'of an election or other competent Court' The first of these rules is not repeated in the rules under the Dist Municipalities Act, but the second is IX (2) of the rules for election of chairman and vice-chairman of municipal councils and Rule 26(1) of Rules for the conduct of elections of municipal Councillors. In fact. these are the rules actually quoted by the learned Judge. Rule 12(2) of the rules for the eleclion of members of district boards by taluk boards or Rule 28 (1) of the rules for the conduct of elections of members of takuk and union boards have a slightly different wording 'Orders of a competent Court'. I see no reason, therefore, to hold that the Full Bench ruling on the Local Boards Act does not equally ap-ply to the Dist. Municipalities Act. Moreover Government had intended the election inquiry to be held by a persona designate, they could easily have recast the rule to put this beyond all doubt as soon as their original drafting had been interpreted in a contrary sense. In matters of this sort acquiescence is the Court's best guide to intention .'

10. While this controvers existed, a similar question came up for consideration again before a Bench of this Court In Mangu Venkatish. In re 1962-1 Andh W R 296. a Bench of this Court was concerned with a case falling under Section 19 of the Hyderabad Gram Panchayats Act (XVII of 1956). Reiving upon the earlier decision of this Court in Bathula Krishna Braman v. Daram Chenchi Reddi, : AIR1959AP129 the learned Judge held that though the powers exercised by the Munsif-Magistrate under Section 24 are in the capacity of a designated person, the same cannot be said of his exercising powers under Section 19. The refer-ence there is to the 'Court' itself and the Munsif-Magistrate while exercising his powers under Section 19 is acting as a Court, being subordinate to the High Court within the meaning of Section 115, C, P. C. The mere fact that finality is attached to his decisions under Section 19 does not take away his orders from the revisionary jurisdiction of the High Court Their Lordships also observed:

'The expression 'persona designata' con-notes a person appointed by name or oilier personal description in contradistinction to one whose identity is to be ascertained by the office he holds. So, then, where a person is indicated in the statute not by name but by an official designation, the question always arises whether the intention was to single him out as a persona designata. i.e. as an individual, the designation being merely his further description or it was that he would cease to be the person so indicated on losing his official designation If he be a judicial officer as in this case and is intended by the statute to act not otherwise than in a judicial capacity or a Court, certainly he cannot come within the expression 'persons designata' so that he may. irrespective of his continuance in office, perform the duty Whether the intention is one or the other has to be gathered from the words used the nature of the functions to be performed and the objects and purport of the statute.'

11. According to the Law Lexicon ofBritish India by Mr. P Ramanatha Alyar,'persona designata' means:--

'Where a person is indicated in a statute or legal instrument not by name, but either by an official designation or as one of a class a question sometimes arises whether he ceases to be the person so indicated in losing his official designation or his character as one of the class, or whether the inten-.tion was to single him oul as a persona designata, that is, as an individual, the designation being merely a further description of him. Designatio Personae then, in genera], means simply the singling out by description of a party to a deed or contract or a person taking thereunder such party or person being in turn called persona designata (ency of the laws of England) When difficulty is found in ascertaining whether a person takes a persona designata. the maxim 'Designatio unius est exclusio alterious at expressum facit cessare tecitum' is applicable; in other words. If one person is specified, another is excluded on the principle that what is expected makes what is only understood to Rive way.'

12. It will thus be clear that the test applicable in such cases is to find out whether the person who is named as an individual or is designated by his office is the person who is selected to exercise the power by excluding others from the exercise of such power If the answer is in the affirmative, then such person becomes persona, designata.

13. In so far as Rule 49 is concerned, the authority legislating clearly manifests its intention that the District Munsif exercises the power only as a persona designata. There is therefore no occasion for construing. Rule 49 in order to find out whether the District Munsif. who hears the election petition, is a persona designata or he hears that as a 'Court'.

14. The difficulty however arises in regard to Section 22 of the Act. Section 22 is in pari materia with Section 19 of the Hyderabad dram Panchayats Act. The above said Bench decision of this Court holding that any order passed under Section 19 of the Hyderabad Gram Panchayat Act is an order passed by a court and not a persona designata and is therefore amenable to revision under Section 115. C. P. C. is binding upon me Section 22 of the Act being in pari materia with Section 19 of the Hyderabad Gram Panchavats Act. I would, following that decision hold that the District Munsif exercising the power under Section 22 is a Subordinate Court within the meaning of Section 115 C.P.C. and his order passed under that seclion would he revisanle by this Court under Section 115. C.P.C.

15. The next question which immediately arises for consideration is whether a writ of certiorari can go to a District Munsif exercising jurisdiction under Section 22 of the Act. The contention of Mr P A Choudhary, the learned counsel for the Sarpanch was that District Munsif being a Subordinate Court of civil jurisdiction, no writ of certiorari or any other writ under Arlicle 226 can issue against him Reliance was placed in this connection on : AIR1962Mad458 .

16. Now. an order of certiorari is a judicial process whereby the order of the Court below can be brought up before the High Court, examined and quashed A writ of certiorari is issued for removing the records or proceedings from an inferior court, tribunal, or quasi judicial authority to the High Court for the purpose of determining the legality of the proceedings or for granting fuller or more satisfactory effect to them than could be done by the Court below or to control the action of the inferior court and to make it certain that thev shall not exceed their jurisdiction. to quash a decision that goes beyond its jurisdiction, to ensure observance of rules of natural justice and to correct errors of law apparent on the face of the record.

17. In R. v. Electricity Commissloners, (1924-1 KB 171 at p. 205) Atkin. LJ observed as follows:--

'Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Di-vision.'

18. From these often quoted words. It is clear that a writ of certiorari can go against any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially. The general conditions therefore which are necessary for the issue of a certiorari are: there should be a court, tribunal or officer (1) having legal authority to determine questions affecting the rights of subjects and (2) having a duty to act judicially.

19. The term 'judicial' in this context has two meanings. It may refer to the discharge of duties by a Court or to administrative duties which need not be performed in the court but in respect of which if is necessary to bring to bear a 'judicial mind i. e., a mind to determine what is fair and just in respect of matters under consideration. It is not in all cases necessary that it should be a court in the ordinary sense of the term. It is enough If it is exercising judicial functions in the sense that it has to decide on evidence between a proposal and an opposition. In all such cases, whether it is a court or a tribunal, judicial or quasi judicial, which has to decide rights after hearing the evidence and opposition, it is amenable to the writ of certiorari. In short, the relevant criterion is not the general status of the person or body of persons by whom the impugned decision is made but the nature of the process by which he or they are empowered to arrive at the decision. When it is a judicial process or a process analogous to a judicial process, certiorari can be granted.

20. It is however necessary that the court or the tribunal must be inferior to the High Court. Certiorari cannot be issued against a court of equal status. It must however be noted that it is not necessary that the Court or tribunal should necessarily be subordinate to the High Court in the sense in which a court should be a subordinate court for the purpose of exercising civil revislonal jurisdiction under Section 115, C.P.C. by the High Court. Even if the Court is subordinate to the High Court, such a court would admittedly be an inferior court for the purpose of the issue of a writ of certiorari.

21. It must be remembered that a writ of certiorari is a constitutional remedy in our country. That is a remedy provided by the Constitution itself. In countries where the jurisdiction to issue writs arises under a statute, the range of the jurisdiction must be sought within the limits of the statutory grants and therefore the question against whom the writs may he issued must also be determined with reference to the words of the particular statute. The power of the High Court under Article 226 is, however, very wide. Article 226 specifies the persons or authorities to whom writs may issue. The words 'to any person or authority including in appropriate cases any Government' are sufficiently wide in its scope and range There can be no difficulty to include inferior or subordinate Courts of civil jurisdiction within this wide terminologyIf a particular case satisfies all other requirements for the issue of a writ of certiorari. 1 fail to see why the power under Article 228 cannot be exercised In issuing writs against the inferior or subordinate courts of civil jurisdiction. The High Court need not feel oppressed by the procedural technicalities of these writs in English law or by any difference of change of opinion expressed in particular cases by English Judges.

22. That this is so is clear from the following two decisions. In Janardhan Reddy v. State of Hyderabad. : [1951]2SCR344 :--

The question to be decided now is whether any of these prayers can be granted. The writs of certiorari and prohibition are hardly appropriate remedies in this case, because they are usually directed to an inferior Court, but at the date when the High Court dealt with these cases and confirmed the convictions and sentences of the petitioners, this Court was not in existence, and at that point of time, by no stretch of reasoning, the High Court can be said to have been subordinate to this Court.'

It becomes clear from the aforesaid observations that the Supreme Court by necessary implication held that a writ of certiorari can go to a subordinate Court of Civil or criminal jurisdiction, but since the High Court of Hyderabad was not subordinate to the Supreme Court as it came into existence afterwards, their Lordships thought that a writ of certiorari in that case cannot go.

23. In Motilal v. State. : AIR1952All963 , a Bench of the Allahabad High Court held:--

'The words 'any person or authority' include courts and tribunals whether under the appellate jurisdiction of the High Court ornot.'

24. In AIR 1962 Mad 468, a Bench of the Madras High Court, however, has held that Article 226 does not clothe the High Court with jurisdiction to quash the orders of a subordinate Court. An order of the Assistant City Civil Judge, susceptible of an appeal or revision, cannot be quashed by a writ of certiorari and a writ of prohibition restraining or forbearing it from proceeding to exercise in any matter before it cannot be Issued. I have to carefullv examine this decision, because Mr. Basu, in his commentary on the Constitution of India. Vol. III (4th Edition) at page 519 says in reference to this case that this view 'based on the assumption that no such jurisdiction was ever exercised In England, is too wide.'

25. A careful reading of that judgment would disclose that the learned Judges stated firstly that no order of a court of civil jurisdiction has been quashed in England by the issue of a writ of certiorari. While reaching that conclusion, their Lordships relied on the rule of practice regarding the issue of certio-rari to quash proceedings in Civil Courts setout by Halibury in Volume 11, at page 128 Their Lordships observed:--

'But there appears to be no reported case in which the judgment of an inferior court of civil jurisdiction has been quashed on cer-fiorari, either for want of jurisdiction or on any other ground. Applications to quash determinations of county courts were however entertained in the cases of Skinner v. Northal-lerton County Court Judge, 1899 AC 439 and 6. v. Lloyd, (1906-1 KB 552), without objec-tion being taken on this ground. In both cases, however, the writ was refused on other grounds.'

A further reasoning in support of this conclusion was given that the special provisions in the County Courts Act governing cer-tlorari, prohibition and mandamus carry with them the necessary implication of the abatement if not abrogation of high royal prerogative writs so long as the statute subsists. Relying upon the principle that where Parliament enacts a measure in regard to a particular matter the Ring's prerogative can no longer have authority in the same field, their Lordships applied the same principle in paragraph 18 of their judgment, to India. Their Lordships thought that the immunity of pro-ceedings in civil courts though of limited. Jurisdiction from prerogative writ can be Inferred from the constitution of such courts the multiple remedies of a sutfor aggrieved by prejudicial decisions against him by way of appeals and revisions, the nature of the enquiry or trial of proceedings in such courts and other circumstances like the narrow scope of a writ procedure compared with more comprehensive scope of the other available remedies, and the structure of a civil court with a scheme of appeals provided for against decisions of that court can be destructive of the operation of writs against such a court. It seems to me with due respect that it is very difficult to accept these conclusions.

26. In England, the writ of cartiorari can be taken away by a statute using express negative words. Such provisions however have always been construed strictly. In such cases, the bar applies only if the procedure laid down by the statute is followed and the conditions complied with, it cannot however be barred by words such as 'final' 'without appeal' and the like in any enactment.

27. It must be remembered that even when certiorari is taken away by a statute, in numerous cases petitions of certiorari were entertained holding that it will lie when the Inferior court has acted without or in excess of jurisdiction, obviously because in such a case, the Court would be deemed to be acting without the terms of the statute Certiorari has also been entertained in spite of such a bar when malice or fraud existed The con-liltutional position in England will have to be borne in mind while applying the principle of bar to issue a certiorari when it is sought to be applied to Indian High Courts after the Constitution is inaugurated. In spite of theCounty Courts Act of 1959, writs have been issued. It would be enough to cite a recent case.

28. In R. v. Judge Sir Donald Hurst, 19602 All ER 385, Lord Parker, C. J., who delivered the opinion for the Court, referring to the two sections of the County Courts Act of 1959 observed:--

'Looking at those two sections it is to be observed that the only remedy by way of certiorari dealt with is in regard to the removal of the proceedings from one court Into another and not for the purposes of quashing. Notwithstanding that, I am quite satis-fied that certiorari will He in this case. The leading case on the matter is ex parte, Bradlaugh, 1878-3 QBD 509, where Mellor, J. put the principle in these words:--

'It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction. The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question.'

To the same effect is a number of cases including, coming to quite recent times, R. v. Worthington Evans; Ex parte Madan, 1959-2 All ER 467, 459 and R Gilmore's Application, 1957-1 All E.R 796, 804. I am quite satisfied that certiorari will lie against a county court Judge if he has acted without jurisdiction, notwithstanding the sections of the County Courts Act, 1959, to which I have referred. Accordingly, it seems to me that in this case it would be right for the court to grant the order to quash the directions given by the county court Judge on Feb. 12.

29. It is profitable in this connection to refer to the editorial note appearing at the top of the said judgment. It is as follows:--

'The decision in the present case that certiorari lies to quash the judgment of a county court, that is to say, an inferior court of civil jurisdiction, seems to resolve a question on which there has been, it is thought, no decisive authority for very many years. That certiorari might He for this purpose may be inferred from the judgment of Williams, J., in Kemp v Balne. 1844 I. D and L. 886 at p. 887, but the contrary view was supported by the judgment of Parke, B., in Lawesv. Hutchinson. (1835-3 Dowl 506 at p 508). Applications for certiorari after judgment in a county court have been entertained though not granted, in recent times and in (1969-2 All E.R 457 at p. 459. letter D) the Divisional Court accepted the view that certiorari to quash would lie in a proper case, though the court did not in fact grant it.'

30. Halsbury's Laws of England. Volume 9. page 331. is also useful in this regard. in regard to ccrtiorari in paragraph 799. It is stated:--

'The High Court or a judge thereof may by order of certiorari or otherwise remove into the High Court any proceedings commenced in a county court, If the High Court or a Judge thereof thinks it desirable that the proceedings should be heard and determinedin the High Court. The removal is to be upon such terms as to payment of costs, giving security or otherwise as the High Court or a judge thereof thinks fit to impose. These provisions apply not only to proceedings brought under the ordinary jurisdiction of the county court but also to those brought under a jurisdiction conferred by some special statute, unless in the latter case the effect of the special statute is to confer an exclusive jurisdiction on the county court or to give it all the powers of the High Court in relation to a particular matter.'

31. It will thus be plain that in England a writ of certiorari can be taken away by express words in a statute. In spite of such bar, certiorari can issue in cases where there is defect of jurisdiction or there is an error apparent on the face of the record or the order is procured by way of fraud

32. In India, the position after the Constitution is entirely different. Under the Constitution of India, certiorari and other writs are remedies conferred by the Constitution itself. The power of the High Court to issue writs under Article 226 cannot be affected by any legislative provision and in spite of anything contained in any legislative enactment. he High Courts can issue such writs, directions or orders under Article 226 as they deem fit. The very object of the inclusion of a specific provision like Article 226 in the Constitution itself with regard to the power of the High Court is to secure that these powers shall not be in any way affected by any law made by the Parliament or the Legislature of a State. Any legislative enactment or other law which abrogates or restricts the right to apply for the issue of a writ of certiorari or any other writ would be ultra vires. It is true that prior to the Constitution the writs were available only under the common law. It was then possible to restrict or abridge or even take away the right to ask for a certiorari. But the situation has undergone a radical change because of Article 226 of the Constitution. Whatever therefore may be the position prior to the Constitution in India, it is now clear that certiorari is a constitutional remedy which cannot even by express language of a statute whether of the Centre or of the State, can be taken away. It is therefore difficult to agree that because of the hierarchy of the civil courts and availability of remedies like an appeal or revision under certain enactments it should be presumed that the power of the High Court under Article 226 to issue the writ is barred or destroyed.

33. In any case, whether or not the power to issue a writ under Article 226 is or can be taken away, it is clear that in spite of such provisions the High Court is not absolutely deprived of the power to issue a writ. It can do so on the ground of either a manifest defect of jurisdiction or of manifesl fraud in the party obtaining the order. It can also be issued wherever there is an error apparent on the face of the record. It is not neces-sary to refer to the decided case in this respect. It seems to be clear that in the presence of Article 226 of the Constitution, the Parliament or the State Legislature cannot take away or abridge the power to issue a writ under Article 226. I have already stated that the mere existence of hierarchy of civil courts or provision of remedies of appeal or revision do not abridge or take away the constitutional remedy of a writ. There is no express enactment at all which abridges the power under Article 226.

34. It is also difficult to hold that the subordinate civil courts are not inferior courts for the purpose of Article 226. A court is an inferior court for the purpose of a writ of certiorari or prohibition whenever its jurisdiction is limited. If the test of limited jurisdiction is to be applied, then it can leave no one in doubt that the subordinate civil courts are inferior courts against whom writs of certiorari or prohibition can issue. I have already stated that the words of Article 226 are wide to include the subordinate civil courts. With great and profound respect therefore, I feel myself unable to agree with the decision of the Madras High Court. Moreover, as stated earlier, the Supreme Court's decision referred to above lakes the view that a writ of certiorari in such cases can be issued. I do not find in principle any difference between a subordinate civil court or a criminal court. In both these cases, in appropriate cases, writs mentioned in Article 226 can issue.

35. In this regard one thing must be remembered that the existence of an alternative remedy by way of an appeal or revision is one thing, but it is quite another thing to hold that because of the existence of the remedy by way of appeal or revision, no writ at all lies. In appropriate cases, where alternative remedy exists, the High Court declines to exercise the powers under Article 226 of the Constitution But it is now firmly settled that the existence of an alternative remedy is not a total bar for the exercise of the power under Article 226 of the Constitution.

36. It is of course obvious that in cases where appeals and revisions are provided againsl the judgments or orders of civil courts, the parties would ordinarily follow the remedies thus available and not prefer to adopt an extraordinary remedy available under Article 226. The courts also may and do discourage the parties shortcircuiting the course by approaching the High Court under Article 226. But that does not mean that in appropriate or exceptional cases the High Court has no jurisdiction to issue any writ under Article 226. That the High Court and the Supreme Court have in practice exercised this power withoul doubting its existence is manifest from a decision of the Supreme Court in Ramji Lal v. State of U.P.. : 1957CriLJ1006 although in that case ultimately a writ was not issued. In T. C Basappa v. T Nagappa, : [1955]1SCR250 , the following observation also lends support to this view:--

'Cectiorarl may lie and is generally gran-led when a Court has acted without or in excess of its jurisdiction.'

I am therefore satisfied that there is no force in the contention of the learned Advocate for the Sarpanch that no writ can issue to the District Munsif deciding questions under Section 22 of the Act.

37. Assuming that this view, is incorrect. even then there can be no difficulty in converting this writ petition into a civil revision petition and disposing it of under Section 115, C.P.C. A request to that effect is made in the reply affidavit and nothing particular was painted out by the learned Advocate for the Sarpanch as to why that request cannot be accepted. I therefore hold that W.P. No 599 of 1966 is maintainable Even otherwise, it can be heard and disposed of under Section 115. C.p.C. as admittedly revision petition lies against an order of the District Munsif passed under Section 22.

38. It was then contended by the learned counsel for the Sarpanch that 8 fresh motion will have to be issued which alone can be considered in a meeting which can be called upon to consider such motion of no-confidence. This argument was based upon a construction of Section 61 of the Act in order to appreciate this contention it is necessary to read Section 51 Section 51 is in the fol-lowing terms:--

'(1) A motion expressing want of confidence in the Sarpanch or Upa-Sarpanch may be made in accordance with the procedure laid down in the following Sub-sections

(2) A written notice of intention to make the motion, in such form as may be prescribed, signed by not less than one-half of the total strength of the gram panchayat together with a copv of the proposed motion shall be delivered in person by any two of the members signing the notice, to the Revenue Divisional Officer and in the absence of such other officer as the District Collector may appoint in this behalf.

(3) The concerned officer specified in Sub-section (2) (hereinafter in this section referred to as the said officer) shall then convene a meeting for the consideration of the motion at the office of the gram panchayat on a date appointed by him which shall not be later than thirty davs from the date on which the notice under Sub-section (2) was delivered to him. He shall give to the members notice of not less than fifteen clear days of such meeting in such manner as may he prescribed.

Provided that where the holding of such meeting is stayed by an order of a Court, it shall be adjourned; and the said officer shall hold the adjourned meeting on a date not later than thirty days from the date on which he receives the intimation about the vacation of stay after giving to the members notice of not less than fifteen clear days of such adjourned meeting, .....'

I am not concerned with the other subsections of that section. What was contended was that the motion was delivered to the Revenue Divisional Officer by six members of the Panchayat on 16-3-1966 The first meeting although was called within 30 days from the date on which the motion was delivered to the Revenue Divisional Officer, since the subsequent three meetings sought to be held in order In consider this motion were adjourned, any fresh meeting now held would be beyond 60 days and would be contrary to Sub-section (3) of Section 61. The motion therefore, it is submitted, has lapsed and cannot now be considered. I do nol find any strength in this contention. Whal is ignored in advancing this argument is that the proviso which must necessarily override Sub-section (3) clearly enjoins that where the holding of such meeting is stayed by an order of the Court, it shall be adjourned and the said officer should hold the adjourned meeting on a date not later than thirty days from the date on which he receives the Intimation about the vacation of stay after giving to the members notice of not less than fifteen clear days of such adjourned meeting. An adjournment is the act of postponing a meeting of any private or public body or any business until another time, or indefinitely, in which case it is an adjournment sine die. This expression also applies to the period during which the meeting or business stands adjourned The proviso carefully read would make it abundantly clear that where the holding of such meeting itself is stayed by an order of a Court, it shall be adjourned which can only mean that it will stand adjourned. It is not necessary as is contended by the learned Advocate for the Sarpanch that in spite of this stay order the members must assemble, hold the meeting and then resolve to adjourn. It will be contrary to the stay order granted by the Court Because of the stay order, by force of law the meeting would be deemed to have been adjourned. The words 'it shall be adjourned' are. in my view, clear enough to indicate that result. The word 'adjourned is used synonymously with the word 'postponed'. In such a case, the motion does not get lapsed What all is required by Sub-section (3) is that the concerned officer shall convene a meeting for the consideration of the motion on a date which shall not be later than 30 days from the date on which the notice under Sub-section (2) was delivered to him That the first meeting called on 12-4-1966 was well within the requirement of that provision is conceded. That meeting, as stated earlier was staved by an order of this court dated 19-4 1966. When that stay order was vacated another meeting was called by a notice dated 284-1966 which was to be held on 20-5-1966 That this meeting also was convened within 30 days from the date in which the concerned officer received the intimation about the vacation of stay is nol in doubt. That meeting also wasstayed, but when the stay again was vacated, the notice for the third time for a meeting was issued on 27-6-1966 and the meeting was proposed to be held on 19-7-1986. That this meeting also was convened within 30 days from the date when the concerned officer had received intimation about the vacation of atny is not in doubt. All the three times that the meetings therefore which were proposed to he held, were perfectly in accord with Subsection (3) of Section 51, As a result of this writ petition, fresh notice will have to be issued and a meeting convened for the purpose of considering the motion which is still alive and remains to be considered by the members of the Gram Panchayat. I do not therefore agree with the contention that a fresh motion win have to be given by the members if they want still to move no-confidence against the Sarpanch. I am clear in my view that the motion ending consideration can still he considered at a meeting properlv convened according to Sub-section (3) of Section 51. I do not therefore experience any difficulty in rejec ting that contention.

39. Reliance in this connection was placed on Bhagavantha Rao v. R.D.O. Jagit-yal. 1981-1 Andh W. R. 168. That decision however can be distinguished not only on facts but also on the provision of law which tell for consideration of the learned Judge in that ease and the provision of law which falls for my consideration in this case From the facts of that case, it would appear that the President of the Vemulavada Pan-chayat Samiti was elected on 22-11-1969. Six months thereafter on 27-5-1960, a notice of intention to make a motion of no-confidence in the President was delivered to the Revenue Divisional Officer by two of the members. The Revenue Divisional Officer convened the meeting for the consideration of the motion on 25-6-1960, that is to say, within 80 days from the date of the delivery of the notice to the Revenue Divisional Officer. On that date, the Revenue Divisional Officer presided over the meeting, read out the no-confidence motion to the members and declared it open for debate under Subsection (7) of Section 83 of the relevant Act. At that stage, the petitioner and his group represented to the Revenue Divisional Officer that the notices of no-confidence motion served on them were not in the pro forma prescribed in the Rules Supplement of December, 1959, but were according to the pro forma in the Rules Supplement of September. 1959. The Revenue Divisional Officer felt that this was a defect which might render the proceedings at the meeting void and consequently adjourned the meeting to 19-7-1960. Notices were again served on the members to attend that meeting. But. on 15-7-1960, the 2nd respondent in that case made a representation to the Revenue Divisional Officer that the notice issued to him did not bear the signature of the Revenue Divisional Officer. As it was not possible to serve another notice to him within ten clear days from the appointed dayof the meeting, the Revenue Divisional Officer appointed a later date viz., 6th August, 1960, for consideration of the motion of no-confidence. It is upon these facts the learned Judge held that the meeting adjourned was not legal and was inconsistent with Sub-section (6) of Section 33 of the relevant Act. The learned Judge also held that the date fixed for the adjourned meeting was later than 30 days from the date fixed for the original meeting and was therefore contrary to Subsection (6) of Section 33, In that context, the learned Judge observed:

'A reading of the section makes it plain that a sense of speed and urgency in considering a motion of no-confidence against a President or Vice President of a Panchayat Saniifi. pervades the scheme of the section.'

The learned Judge earlier observed that 'the latter part of Sub-section (5) contemplates the fixing of a date for the adjourned meeting with reference to an earlier date and that date is the date fixed for a meeting under Sub-section (3) for the consideration of a motion of no-confidence, which date again is linked with the date of delivery of the notice of the proposed motion as prescribed by Sub-section (2). So that the whole process from beginning to end should be completed within a period of sixty days.' The learned Judge was making an observation In regard to a case where the whole process could bo completed as per the provision of law without any stay order intervening. In that case the Court was not concerned with a situation where the Court granted stay. The proviso to Section 51(8) of the Act clearly excludes the period during which the stay operated. The only responsibility which is put upon the concerned officer is lo call the meeting within 30 days from the date when he is intimated about the vacation of the stay. That condition so far as fulfilled and I have no doubt that it can be fulfilled when another meeting would be called to consider the motion of no-confidence which is pending.

40. The only point which survives for consideration is whether the order staying tht meeting of the Gram Panchayat is made within the jurisdiction of the Munsif-Magistrate. Section 22 of the Act only permits the Munsif-Magistrate to make enquiries about the disqualification of a particular member. The section itself states that pending the enquiry, the member shall continue to be an effective member and can participate in all the proceedings of the Gram Panchayat The Mun-sif-Magistrate therefore could not have issued any injunction restraining the member against whom disqualification is alleged from participating in any meeting of the Gram Panchayat. When the Court cannot do that, the same result cannot be achieved b staying the meeting to consider the no-confidence motion. That was neither necessary for the effective disposal of the O.P pending before the Mun-sif-Magistrate nor in my view he had any jurisdiction to travel beyond the scope of the enquiry and slay the consideration of themotion of no-confidence itself. He acted undoubtedly in excess of his jurisdiction when he granted stay of the meeting itself. It may be that the provisions of the C. p. C. are applicable to such an enquiry and the Munsif-Magistrate is empowered to pass an interim order. He cannot, however, pass an interim order of the kind which he has passed in this case. There was no justification for any such order. I am therefore satisfied that the order staying the meeting of the Gram Panchayat is without or at least in excess of jurisdiction of the Munsif-Magigtrate and cannot therefore be allowed to be sustained.

41. It is unfortunate that despite the obvious fact that the Sarpanch has lost the confidence of a large majority of the members of the Village Panchayat, he continues to head the Village Panchayat right from the time when the motion was moved and the O P. was filed by him till today. One can only imagine what effects it must have had on the administration of this grass-root democratic body. It has been the long tradition of these and such other democratic institutions that the moment the head of the democratic institution feels that a majority has lost confidence in him he ungrudgingly and smoothly tenders his resignation making room for a person who enjoys the confidence of the majority of the institution. But to the great detriment of this very useful tradition and convention inclinations on the part of the Sarpanch and the President of the local bodies appear to be growing to continue in office in spite of opposition from a majority with the assistance of the courts by filing O. Ps and peti tions, which, in majority of cases, have proved ultimately to be of dubious character. ancf were in majority of the cases thrown out. Nonetheless the damage to the working of the institution and to the useful convention is already done because of staying the con sideration of the motion of no-confidence It is therefore necessary for the Courts to discourage this tendency of the heads of institutions to depend more upon the Court's assistance than the assistance they should have from the majority of the members of the institution. I do not for a moment desire to suggest even remotely that in exceptional or appropriate cases the Courts should not exercise the powers they enjoy but what I mean to stress is that such a power should sparingly be used and used with great deal of caution.

42. The result is that W. P. No 746 of 1966 fails and is dismissed with costs W. P. No. 599 is allowed with costs, certio-rari will issue and the order of the Munsif Magistrate dated 11-4-1966 is quashed Advo-cate's fee Rs. 100/- in each petition.

W. P No. 746 dismissed and W. P. No. 599allowed.


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