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Patel Pratapsinh Hirabhai Vs. the Panchmahals District Panchayat and ors. - Court Judgment

LegalCrystal Citation
SubjectElected
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR329
AppellantPatel Pratapsinh Hirabhai
RespondentThe Panchmahals District Panchayat and ors.
Excerpt:
.....to get respondent no. in such a contingency probably the intention would have been expressed in then same manner as the legislature has clearly done with respect to the chairmanship of the executive committee......panchayat. section 131 of the act provides for the constiution of various committees including the education committee. on 27th of april 1964 petitioner was elected as a member of the education committee on 7th may 1964 petitioner was elected as the chairman of that education committee. on 10th july 1964 a notice convening the meeting of the district panchayat on 24th july 1964 was given to the members on 13 july 1964 one s.g. shah who was a member of the education committee tendered his resignation as such a member. thereupon on 18 july 1964 a letter was circulated to the members in which it was stated that one of the items of agenda that would be transacted at the meeting called on 24th july 1964 would be the consideration of the letter of resignation of s.g. shah. on 24th of july 1964.....
Judgment:

N.M. Miabhoy, J.

1. This is a petition by Patel Pratapsinh Hirabhai under Article 226 of the Constitution of India claiming certain reliefs against the three respondents to be presently mentioned. The point which arises for decision in this petition is a short one and it relates to the construction of Section 131 Sub-section (3)(ii) of The Gujarat Panchayats Act 1961 (hereafter called the Act) as amended by Gujarat Act No. LIII of 1963. We may at first briefly state the facts leading up to the presentation of the present petition. The District Panchayat of the Panchmahals District respondent No. 1 herein was constituted under Section 15 of the Act. In the month of February or March 1964 an election was held in which amongst others petitioner and respondent No. 2 were elected as Members of that Panchayat petitioner was elected on the ticket of the Swatantra party and respondent No. 2 was elected on the ticket of the Congress party. Respondent No. 3 is the ex-officio Secretary of the District Panchayat of the Panchmahals district (hereafter called District Panchayat) having been appointed under Section 142 (2)(a) of the Act. Respondent No. 2 was elected the President of the District Panchayat. Section 131 of the Act provides for the constiution of various committees including the Education Committee. On 27th of April 1964 petitioner was elected as a Member of the Education Committee on 7th May 1964 petitioner was elected as the Chairman of that Education Committee. On 10th July 1964 a notice convening the meeting of the District Panchayat on 24th July 1964 was given to the Members On 13 July 1964 one S.G. Shah who was a Member of the Education Committee tendered his resignation as such a Member. Thereupon on 18 July 1964 a letter was circulated to the Members in which it was stated that one of the items of agenda that would be transacted at the meeting called on 24th July 1964 would be the consideration of the letter of resignation of S.G. Shah. On 24th of July 1964 the convened meeting was held under the Presidentship of respondent No. 2. When the letter of S.G. Shah was taken up for consideration a point of order was raised by petitioner and his party-men contending that the matter should not be taken up for consideration as ten days clear notice of that item of the agenda was not given to the Members as required by Rule 4 of the Gujarat Taluka and District Panchayats Procedural Rules 1963 (hereafter called the Rules). That point of order was rejected by respondent No. 2 on the ground that the notice of the meeting was sent on 10th of July 1964 and further on the ground that the President had the power of permitting an additional item of business to be transacted under Rule 21 of the Rules. Thereafter a resolution was passed at the meeting accepting the resignation of S.G. Shah. Thereupon one Mr. Gandhi sought the permission of the President to move a resolution for filling up the vacancy created by the aforesaid resolution. Petitioner and his group also raised a point of order against this motion. The objection was that the motion was a new item of business and unless a notice as required by Rule 4 aforesaid was given the same could not be taken up for consideration at the Meeting. That point of order was also ruled out on the ground that the same was permissible under Rule 22 of the Rules. Thereafter petitioner and his group walked out of the meeting. Then a formal resolution was moved for electing respondent No. 2 as a Member of the Education Committee and that resolution was passed. On 27th July 1964 respondent No. 3 wrote a letter to petitioner in which he intimated to him that under Section 131 Sub-section (3) Clause (a) of the Act petitioner had ceased to be a Chairman of the Education Committee in view of the fact that respondent No. 2 the President had been elected a Member of that Committee. A copy of this order was endorsed by respondent No. 3 to a number of persons including the Administrative Officer District Education Committee Panchmahals. Respondent No. 3 also gave a direction to the officers of the Panchayat not to place any papers for the signatures of petitioner as the Chairman of the Education Committee. Petitioner challenges the validity of this order in the present petition. We will mention in a moment the grounds on which this order is being challenged by petitioner. On 1st August 1964 petitioner wrote a letter to respondent No. 3 protesting against the impugned order and contending that inspite of the election of respondent No. 2 to the membership of the Education Committee he himself still continued to be the Chairman of the Education Committee. On 3 August 1964 respondent No. 3 wrote back to petitioner stating that the position that he had taken up in his previous letter was correct in law and declined to change or alter that previous order.

2. Before we mention the submissions made by Mr. Patel in support of this petition we may dispose of a preliminary objection which was taken by Mr. Surti on behalf of the three respondents. Mr. Surti contended that petitioner had an alternative and effective remedy for redressing his grievance and that because of the existence of such a remedy the present petition should not have been entertained. The submission of Mr. Surti was based upon the provisions contained in Subsection (6) of Section 294 and Sub-section (3) of Section 296 of the Act. In our judgment there is no merit in the objection and the same deserves to be rejected. Sub-section (6) of Section 294 gives power to the Collector to suspend the execution of any order or resolution or prohibit the doing of certain things if in his opinion the execution of any order or resolution of any panchayat or the doing of anything which is about to be done or is being-done by or on behalf of such panchayat is causing or is likely to cause injury or annoyance to the public or to lead to a breach of peace. Apart from the question as to whether this provision would or would not provide petitioner with an alternative or effective remed there is no doubt whatsoever that the Collector could not have acted in support of the claim made by petitioner herein because the condition which is mentioned in the section which would empower the Collector to act under that section is not satisfied on the facts of the case. It is quite clear that the Collector can take action under the aforesaid section if in his opinion the action taken by the panchayat is causing or is likely to cause injury or annoyance to the public or to lead to a breach of peace. None of these conditions is satisfied on the facts of the present case. It cannot he said that the impugned order has caused or is likely to cause an injury or annoyance to the public or to lead to a breach of peace. Undoubtedly according to petitioner the impugned order has caused an injury to himself. But obviously the section is not intended to cover the case of a private injury. Mr. Surti based his contention on an averment contained in the petition to the effect that by the impugned order petitioner was illegally deprived of an opportunity to serve his electorate. It is difficult to see how this averment can ever be construed as meaning that the impugned order was likely to lead to a breach of peace. Subsection (3) of Section 296 of the Act empowers the State Government to take action if a panchayat has made default in the performance of any duty and that the district panchayat has failed or neglected to take action under Subsection (1). It is also difficult to see how this sub-section can apply to the facts of the present case. It is not the allegation of petitioner that either the Panchayat or any of its officers has committed any default in the performance of any of the duties imposed on it under the Act. It is in the case of latter kind of default that the action of the Government is called for. Therefore we are not satisfied that if petitioner had approached the Collector or the Government with the grievance which he has made in the present petition that grievance could have been redressed either by the Collector or by the State Government. Therefore the preliminary objection must be rejected.

3. Now before we mention the submissions which were made by Mr. Patel in support of the present petition we may mention a few facts in order to delimit the exact point which arises for our determination in the present petition. In the first instance we are not called upon in the present petition to deal with the question of the validity of the election of respondent No. 2 to the membership of the Education Committee. Mr. Patel very frankly conceded that the present petition was not filed with a view to get the validity of the rulings given by respondent No. 2 on the points of order raised at the meeting decided. The aforesaid averments have been made by petitioner according to Mr. Patel only with a view to show that the action which was taken by respondent No. 3 was collusive with respondent No. 2 and that it was mala fide. According to petitioner the party-position in the District Panchayat was more or less evenly balanced and although respondent No. 2 could manage to become the President of the panchayat by a majority of two votes only the Swatantra party of which petitioner was a member had been able to obtain a majority of the seats in the various Committees. Petitioners contention was that therefore the various items of the agenda at the meeting of 24th July 1964 were manoeuvred in order to oust the members of the Swatantra party from the strong position that they had been able to build up in the various Committees and it was with a malafide object and with a view to oust the the members of the Swatantra party from the responsible positions to which they had been elected and to usurp power From them that the business of the aforesaid meeting was transacted in such a manner as to get respondent No. 2 elected to three Committees including the Education Committee. Therefore, in the present petition we are not concerned with the validity of the election of respondent No. 2 to the membership of the Education Committee. There is one more factor which we may also clarify According to petitioner he was elected as the Chairman of the Education Committee for a period of four years. According to Section 131 Sub-section (5)(i) the term of the Education Committee is co-extensive with the term of the Panchayat and under Section 17 of the Act the term of a Panchayat is for a period of four years. The contention of petitioner that he was entitled to be the Chairman of the Education Committee for a period of four years is based upon the aforesaid two provisions of the Act. However there is a controversy between petitioner and respondents on this subject. Respondents have denied in their affidavit in reply that the term of petitioner as a Chairman of the Education Committee was co-terminus with the term of the Education Committee. Under Section 131 Sub-section (3) of the Act it is provided that in the case of committees other than the Executive Committee ...the members of each committee shall elect from amongst themselves the chairman of the Committee. This section does not in terms provide for the term for which the Chairman of a Committee shall hold his tenure. This is in contrast to the provision contained in Section 69 of the Act in which it is provided that the term of the President of a Panchayat shall be coterminus with the period of the Panchayat. The resolution by which petitioner was actually elected as the Chairman of the Education Committee is not before us and we have no information as to whether the relevant resolution did or did not provide for the period of Chairmanship of petitioner. But both the sides are agreed that on the date on which respondent No. 2 was elected as the Member of the Education Committee petitioner did hold the status of the Chairman of the Education Committee and the impugned order is based on that assumption. It is not the case of respondents that by some reason other than the election of respondent No. 2 as the Member of the Education Committee petitioner had ceased to be the Chairman of the Education Committee. The impugned order is based on the assumption that on respondent No. 2 being elected as a Member of the Education Committee the right of petitioner to hold the post of the Chairman of the Education Committee ceased. Therefore it is on this assumption that we are deciding the various submissions which arise for consideration in the present petition.

4. The submissions made by Mr. Patel were three in number. His first submission was that under Section 131 Sub-section (3) Clause (ii) once a Chairman was elected he was entitled to remain in that office. Secondly he contended that having been so elected as a Chairman petitioners status as such Chairman was not affected under the proviso to Section 131 Sub-section (3) Clause (ii) aforesaid by reason of the election of respondent No. 2 as a Member of the Education Committee. Thirdly he contended that the impugned order was malafide and was collusive having been passed in collusion with respondents Nos. 2 and 3.

5. In our judgment the first two submissions or Mr. Patel are valid and must be upheld and therefore it is not necessary to undertake a decision of the third submission aforesaid.

6. In order to understand the first two submissions it is necessary to quote Section 131 Sub-section (3) in full. That sub-section reads as follows:

(3)(i) The President of the district panchayat shall be ex-officio chairman of the Executive Committee.

(ii) In the case of other committees the members of each committee shall elect from amongst themselves the chairman of the Committee: Provided that--

(a) where the President and the Vice-President both are members of any Committee the President and

(b) where only one of them is a member he shall be the ex-officio Chairman of such Committee.

Now the impugned order is based on the proviso aforesaid. The action of respondent No. 3 is based on the interpretation that as soon as either the President or the Vice-President becomes a member of any Committee including the Education Committee the Chairman of the Committee for the time being stands disqualified and automatically the President or the Vice-President becomes the Chairman of the Committee unless both of them decline to hold the office. Mr. Patel challenges this interpretation. In his submission the above interpretation offends against the ordinary rule of construction which enjoins that a proviso is intended to carve out something from the main provision of the enactment. He submits that the above interpretation has the demerit of giving the proviso the status of an independent enactment itself. In our judgment the submission of Mr. Patel is correct. There cannot be any doubt that the main provision in Clause (ii) aforesaid has a reference to the election of a Chairman of a Committee. That provision enjoins that the members of each Committee shall elect a Chairman from amongst themselves. Therefore the proviso must be construed in the light of that main provision. What the proviso enacts is that where the President or the Vice-President is a member of any committee then he shall have the first option of becoming the Chairman of the Committee concerned and it is only after he declines to do so that another member of the committee will have the right to become a Chairman of the Committee. Having regard to the main provision in our judgment the proviso must be construed in the aforesaid manner. The whole clause together with the proviso is intended to deal with and apply to a situation arising at the time of the election of the Chairman of a Committee. It does not deal with a situation which arises after a Chairman has been elected in accordance with the provisions of that clause. Mr. Surti. however suggested an alternative reading. That alternative reading was that the main provision does not provide for the period for which a Chairman has to be elected. He contrasted the provision in this connection with the provision contained in Section 69 which we have already noticed. Mr. Surtis contention therefore was that the term of the Chairman of a Committee has not been made coterminus with the term of the Committee itself. As we have already pointed out this matter really is not directly in controversy between the parties and it is not necessary for us to express an opinion as to the correctness of the contention of petitioner that his term is co-terminus with the term of the Education Committee. But whilst this is so we cannot uphold the contention implied in the submission of Mr. Surti that the term of the Chairman of the Education Committee would be precarious in the sense that it lasts only for a precarious period and is liable to be displaced the moment the President or the Vice-President becomes a member of the Education Committee. In this connection what is important to notice is that the Chairman to be elected under the clause is not to be the Chairman of a specified meeting. The Chairman who becomes elected is to be the Chairman of the Committee itself. A perusal of Section 132 of the Act would show that the term of such a Chairman is not and cannot be a precarious term. Such a Chairman is entitled to receive an honorarium of Rs. 200/per month. He is also entitled to free residence at the headquarters. The moment this conclusion is reached then it becomes clear that when a Chairman comes to be elected on the date of the first election then unless the term is limited either by provision of any other sections contained in the Act or by the provision of the resolution itself the person elected as the Chairman would continue to hold the office of such a Chairman. If the proviso is to apply at the time of this election as it must then the bar to the election of a member other then the President or the Vice-President must necessarily attach only at the time of the first election or any subsequent election at a time when the President or the VicePresident happens to be a member of the committee. The interpretation which Mr. Surti seeks to place upon the proviso would have a strange result. If it be held that the term of the Chairman is precarious and is dependant upon the exercise of a volition by the President or the VicePresident to become Chairman at any time then it would mean that even though on the date of the first election the President or the VicePresident had declined to be the Chairman of the Committee any of them could by mere expression of a wish displace the Chairman of the Committee at any subsequent meeting. In our judgment it is hardly probable that the Legislature could have expressed in the aforesaid roundabout manner its intention even If it had such an intention. In such a contingency probably the intention would have been expressed in then same manner as the Legislature has clearly done with respect to the Chairmanship of the Executive Committee. As regards that Committeethe Act has in express terms enacted that the President of the District Panchayat shall be the ex-officio Chairman of the Executive Committee. The contention of Mr. Surti deserves to be rejected also from another angle also. Clause (ii) aforesaid deals with the election of a Chairman and has nothing to do with the subsequent disqualification of such a Chairman after he has been elected. In effect the argument of Mr. Surti is this that though a member may have been validly elected as the Chairman of a Committee the moment the President or the VicePresident comes on the scene the Chairman becomes disqualified. In out judgment it would be extending the scope of the aforesaid clause if the clause as a whole or the proviso is read as a disabling clause or a disqualification attaching to the Chairman of the Committee. But Mr. Surti very seriously contended before us that the construction which we have mentioned above would render the provision contained in Section 71(1)(a)(iv) of the Act totally nugatory. Section 71 provides for the powers and functions of the President and the Vice-President. Clause (1)(a) defines the powers and functions of the President and Clause (iv) says that the President shall watch over the financial and executive administration of the Panchayat. Mr. Surtis argument is that if the President does not automatically become the Chairman of the Education Committee or any Committee whatsoever after becoming its member then the President will not be in a position to exercise the control over the executive administration of the Panchayat which the aforesaid clause envisages. We are unable to see any merit in this argument. It is incomprehensible as to how the President will lose his powers of superintendence over the administration of the Panchayat if he does not become automatically the Chairman of a Committee of which he has subsequently become a member. The two capacities are entirely different. Even if the Education Committee has taken any particular decision which requires to be controlled by the President in the discharge of his Presidential functions we do not see how he would be precluded from doing so simply because at the relevant time he does not also happen to be the Chairman of a Committee but happens to be its member only. In our judgment therefore there is no merit in the aforesaid contention of Mr. Surti also.

7. We may mention that our attention was not drawn to any other provision of the Act nor to any scheme in the Act which would render the interpretation which we have placed on the aforesaid Clause (ii) as inconsistent or which would bring it into disharmony with any of those provisions. That being so in our judgment the ordinary rule that a proviso must be so construed so as to carve out from the principal clause something which is included therein must prevail. That being so as the main part of the aforesaid clause deals only with the question of election the proviso must also necessarily deal with a situation which arises at the time when the election of a Chairman takes place and it cannot extend beyond that particular point of time during the subsistence of the tenure of a person as a Chairman of a Committee.

8. For the aforesaid reasons we have come to the conclusion that the fact that respondent No. 2 came to be elected as a Member of the Education Committee on 24th of July 1964 did not displace petitioner from his position as the Chairman of the Education Committee. Having regard to this conclusion of ours in our judgment the petition deserves to be allowed. Petitioner has prayed for a declaration that the impugned order dated 27th of July 1964 passed by respondent No. 3 should be declared as illegal void and not binding on petitioner. Having regard to our aforesaid conclusion there is no doubt that petitioner is entitled to that declaration. He has also prayed for a declaration that he continues to be the Chairman of the Education Committee of the aforesaid panchayat. There is also no doubt that he is entitled to such a declaration too. It follows from this that respondent No. 2 has not become the Chairman of the Education Committee by reason of his being elected as a member of that committee on 24th of July 1964. Petitioner has asked for a writ of mandamus restraining respondents Nos. 1 and 3 and their servants and agents from giving effect to or from enforcing the aforesaid impugned order. In our judgment petitioner is also entitled to a writ of mandamus in these terms. Rule made absolute to the extent mentioned above Respondents to pay the costs of petitioner and bear their own.


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