1. This petition under Article 226 of the Constitution of India is directed against the order of the Collector, Rewa, respondent No. 2, removing the petitioner from the office of the Sarpanch of the Gram Panchayat, Choura,
2. It appears that the petitioner recovered some donations, consisting of cash and kind, from the villagers of mauzas Sanori, Makarwat and Bara forthe purposes of erecting Bhawans and Seed Go-downs for the use of the Gram Sabha. He thus collected Rs. 67/8 from 67 subscribers and 3 khan-dis, 12 kurai and 9 kurwa grain from 64 subscribers. He brought the matter to the notice of the Gram Panchayat at its meeting dated 29-10-1957 when the Gram Panchayat passed a resolution that as the amount was small for the purpose for which it was collected, it should be deposited for expenditure on Samaj Shiksha projects, and objections should be invited to the adoption of that course.
The villagers of mauzas Makarwat and Sanori did not demur to the proposal but an objection was raised by certain persons of Mauza Bara, who did not want their donations to be switched over to educational purposes.
3. The matter was, therefore, referred by the Gram Panchayat to the Niyat Adhikari for advice and guidance. Meanwhile, respondent No. 3 made an application to the Collector, Rewa, against the petitioner. Thereupon, the petitioner received a notice dated 26-2-1958 from the Collector asking him why he should not be removed from the office of the Sarpanch of the Gram Panchayat. The petitioner submitted his explanation on 11-3-1958. The Collector, however, was not satisfied with his explanation and passed an order dated 6-5-1958 removing him from his office.
4. The matter is governed by the Vindhya Pradesh Gram Panchayat Ordinance, 1949, and the rules made thereunder. The scheme of the Ordinance is that there is a general body called Gram Sabha which elects from amongst its members an executive committee called the Gram Panchayat. The number of members of a Grarh Panchayat is determined by the Government and the Sarpanch and Up-Sarpanch of the Gram Sabha act as the Sarpanch and Up-Sarpanch respectively of the Gram Panchayat : see Sub-sections (1) and (2) of Section 12 of the Ordinance.
Section 14 prescribes the procedure for removal of the Sarpanch or the Up-Sarpanch of the Gram Sabha. It requires a majority of two third votes of the members present in an ordinary meeting of the Gram Sabha for removing the Sarpanch or the Up-Sarpanch. There is no provision either in the Ordinance or the rules made thereunder for the election of any separate Sarpanch or Up-Sarpanch of the Gram Panchayat. It appears clear from Sub-section (2) of Section 12 that the members, whose number is fixed by the Government, are exclusive of the Sarpanch and the Up-Sarpanch of the Gram Sabha, who by virtue of their office are entitled to be the Sarpanch and the Up-Sarpanch of the Gram Panchayat.
5. Adverting to the rules framed under the Ordinance, one finds that removal of a member, or panch or Sarpanch is provided under Rule 61. However, that rule is concerned with the removal of a member of a Gram Panchayat or a panch or a Sarpanch of a Nyaya Panchayat only. It is clear from what has been stated above that the petitioner is none of these. The rules do not provide separately for the removal of a Sarpanch or an Up-Sarpanch of a Gram Panchayat.
The reason is clear enough and that is that since there is no separate Sarpanch or Up-Sarpanch for a Gram Panchayat, no provision was needed for removing him from that office. A Sarpanch or an Up-Sarpanch of a Gram Sabha can be removed in the manner provided in Section 14 of the Ordinance. If he is thus removed, then he automatically wouldcease to be the Sarpanch or Up-Sarpanch of the Gram Panchayat. However, no such procedure was followed in the present case.4 The Collector had, therefore, no authority to remove the petitioner from the office of the Sarpanch of the Gram Panchayat. The order impugned is thus without authority and is liable to be vacated. It is necessary in the interests of justice that an order without jurisdiction is not allowed te stand even though the tenure of the petitioner's office has expired,
6. The result is that the petition is allowed with costs, and the order of the Collector, Rewa, dated 6-5-1958, removing the petitioner from the office of the Sarpanch of the Gram Panchayat, Choura, is quashed. Hearing fees Rs. 25/- to be paid by all the, respondents. The outstanding amount of the security deposit shall be refunded to the petitioner.
7. I have had the advantage of perusing the Older of may Lord the Chief Justice. I am entirely in agreement with everything that has been said in his order. However, I think it necessary to add something in view of the importance of the question.
8. The petitioner, as the Sarpanch of the Gram Sabha and Sarpanch of the Gram Panchayat of Choura in the former State of Vindhya Pradesh, collected an amount of Rs. 67/8/- from 67 subscribers and 3 khandis, 12 kurai and 9 kurwa grain from 64 subscribers, for the purpose of erecting a Panchayat bhawan and a seed godown in the village. The amount and the grain were collected in small quantities from different cultivators in the month of March 1957 and onwards. The third respondent made a complaint against the petitioner, as a result of which, the Collector asked the Panchayat Officer to institute an enquiry against the petitioner some time in November or December, 1957. The petitioner had brought the fact of collection to the notice of the Gram Panchayat earlier; and in October 1957 a resolution was passed to the effect that as the amount was meagre and insufficient for the purpose it was collected for, it be diverted to the cause of social education and that the opinion of the donors be solicited, It is true that the petitioner had the custody of the amount and grain collected during all this period and that it was not deposited in the Panchayat fund. From the record it is clear that the petitioner never made a secret of the said collection, nor of the extent of the collections. The matter was put before the Niyat Adhikari and the meeting of the Panchayat as well.
9. After the enquiry held by the Panchayat Inspector in the month of December, 1957, the Collector issued a notice dated 26-2-1958, (respondent's annexure 2) framing the following charges and calling upon the petitioner to show cause as to why he should not be removed from the office of Sarpanch :
(i) That about 8 months' back the petitioner collected some contributions, which were not duly accounted for and no receipts were given to the donors.
(ii) That the collection was not deposited in the Panchayat fund and if no enquiry had been held, the matter would not have come to light.
(iii) The said collection did not find place in the account of the stock register or the seed register.
(iv) That the collection shown by the petitioner in the account submitted to the Panchayat Inspectorwas short by Rs. 2/4/- in cash and 2 kurai, 8 kurwain grain than the actual collection.
(v) There was suspicion that the petitioner might have collected more amount and grain, which had not been included in the accounts.
The petitioner submitted his explanation to the Collector, who, not being satisfied with the same, passed an order dated 6-5-1958, removing the petitioner from his office of Sarpanch of the Panchayat for misappropriation of the Panchayat property dishonestly.
10. I agree with the view of my Lord the Chief Justice that the Collector had no authority to remove the petitioner from the office of the Sarpanch of the Panchayat. As Sarpanch of the Gram Sabha, the petitioner was removable by a meeting of the Sabha itself by a majority o two-third votes, as provided by Clause 14 of the Ordinance and Rule 61 of the Rules framed thereunder.
11. The present case is gqverned by the provisions of Vindhya Pradesh Gram Panchayat Ordinance, 1949 and the rules framed thereunder. Clause 15 of the said Ordinance prescribes the duties and functions of the Gram Panchayat. Clause 16 provides for the discretionary functions of the Gram Panchayat, which is an executive committee of the Gram Sabha under the Ordinance. The purpose, for which the collections were made by the petitioner, is not governed by any of the provisions of Clause 15 or Clause 16.
Moreover, the Panchayat had not passed any resolution authorising collections for the purpose. The collections were made at the instance of certain villagers and upon the initiative of the petitioner individually. As such, it could not be said that while making the collection, the petitioner was performing any of the functions under the V. P. Gram Panchayat Ordinance, 1949. In answer to this, it was urged by the learned Deputy Government Advocate that the collections were made by the petitioner in his capacity as a Sarpanch of the Panchayat. True, as the receipts filed on record disclose, the petitioner did purport to act in that capacity.
But under whatever wrong notions the petitioner might have acted, that will not convert his capacity into an official one. While performing his functions under the Ordinance, he would certainly act in his official capacity. It was not exactly in consonance with propriety that in the absence of authorisation by the Panchayat, the petitioner should have made use of the official machinery of the Panchayat for making the said collections. However, he, being and uneducated and unsophisticated person, could be excused for such a lapse, which was bona fide and without any dishonest motive.
12. The amount and the grain were collected admittedly for the Panchayat bhawan and the Panchayat seed store. Could it be said that the collections became the property of the Panchayat, no sooner the donors donated the amount? The matter is governed by Clause 32 of the Gram Panchayat Ordinance, 1949. Sub-clause (i) of the said clause provides that all sums received by way of loan or gift shall vest in the Gram Sabha and shall form part of the Panchayat funds, which shall be utilised by the Gram Panchayat subject to the provisions of the budget passed under Section 13, to meet charges in connection with its duties under this Ordinance.
It is thus clear that all gifts made to the Gram Sabha or the Gram Panchayat vest in the Panchayat as a Panchayat fund. In the present case thecollections were made upon a private initiative for a specific cause, which was unfulfilled on account of the fact that the amount was meagre and insuffi-cient for achieving the purpose. The donors, having made the donation for a specific purpose, the amount could not be appropriated towards the general fund of the Panchayat in the absence of the consent of the donors. I am, therefore, of opinion that the collections did not become the property of the Panchayat at any time before the donors' consent was obtained.
Some of the donors agreed to the appropriation of the funds for the cause of social education, while others opposed the proposal. The persons opposing were entitled to direct the amount to be appropriated towards any other cause or to claim a refund of the same in the event of failure of the purpose of the collections. Under these circumstances the learned Collector was not right in holding that the collections were the property of the Panchayat and that the petitioner should have deposited the amount in the Panchayat fund immediately.
13. It is true that any collection of taxes, duties, donations or gifts made under due authority for a purpose covered by Clauses 15 and 16 of the Ordinance would vest in the Panchayat, no sooner they are made. But any donations or gifts secured by private enterprise for a purpose not covered by the said clauses would not vest immediately, unless some overt act of entrustment were to be performed. This, however, to say the least, does not imply that the persons making collections have no responsibility of any kind. They would be constituted constructive trustees under Section 90 of the Indian Trusts Act from the time of collection to the time of entrustment to the Panchayat fund and as such would, undoubtedly be liable for any breach of trust. But their failure to deposit the amount immediately in the Panchayat funds would not amount to a breach of the official duty so as to be actionable under the provisions of the Ordinance, although they would not be absolved of a criminal liability, if any.
14. The next question that arises is about thebona fides of the petitioner. Although, in the return various allegations have been made, the said allegations are not corroborated by the facts on record. The petitioner's bona fides are apparent from the very fact that he had disclosed to the Niyat Adhikari, as also to the Panchayat members about the fact and quantum of collections,
15. The petitioner alleged that the action of the Collector at the instance of the third res-pon-dent was mala fide. I do not accept this contention. It is- clear that the Collector's action was bona fide and in the best interests of the Panchayat. Such strict supervision over the unauthorised actions of office-bearers and members of local bodies is rather to be appreciated than disapproved of. In the present case, the anxiety of the Collector to safeguard the interests of the Panchayat is certainly praiseworthy. But the action taken by him was misconceived, as it was not warranted by the provisions of the Ordinance.
16. The petitioner's term as Sarpanch expired on 31-12-1957. It was, therefore, urged that the present petition has become infructuous. I do not agree. By the order of the Collector, a serious aspersion was cast on the petitioner's private and public character. If that aspersion were to remain, he would be presumed to be guilty with a tarred refutation. Under these circumstances, it is not de-sirable that the said order of the Collector should beallowed to remain on record, which would be in derogation of the petitioner's reputation for all time to come. I, therefore, agree with my Lord the Chief Justice that the order of the Collector deserves to be quashed. In addition to the illegality of the said order, I would, however, add that it was misconceived and unjustified.