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Narayan Singh Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1355 of 1983
Judge
Reported inAIR1984Raj69
ActsConstitution of India - Article 226; Rajasthan Panchayat Samiti and Zila Parishads Act, 1959 - Sections 39, 39(2) and 39(5)
AppellantNarayan Singh
RespondentState of Rajasthan and ors.
Appellant Advocate Jagdeep Dhankar, Adv.
Respondent Advocate M.R. Calla and; O.P. Sharma, Deputy Govt. Adv.
DispositionPetition allowed
Cases ReferredDaula Ram v. State of Rajasthan
Excerpt:
.....the collector issued an order (annexure ii) staying the meeting sine die on the ground that the state government had issued an order, dated may 2, 1983, requiring him to postpone the meeting in that manner. the non-petitioner is also defending on merits the order of the state government directing the collector to postpone the meeting scheduled to be held on may 4, 1983. it is contended that the state government was perfectly within its jurisdiction and power to issue such a direction to the collector. broadly speaking, the law is well-settled that demand of justice and its denial must precede the filing of a writ petition asking for a direction or a writ in the nature of mandamus. , the state government, no useful purpose 'would have been served to demand justice from him, for he was..........the collector issued an order (annexure ii) staying the meeting sine die on the ground that the state government had issued an order, dated may 2, 1983, requiring him to postpone the meeting in that manner. the petitioner filed the present writ petition on july 7, 1983, challenging the validity of the postponement on the ground that the state government has do power to interfere and direct the postponement of a meeting convened by the collector under section 39 to consider a motion of no-confidence against the pradhan of a panchayat samiti and that therefore the collector cannot lawfully postpone such a meeting. the petitioner is seeking from the court a writ or direction enjoining the state government and the collector bharatpur to convene a meeting of the panchayat samiti sewar for.....
Judgment:
ORDER

K.S. Sidhu, J.

1. The main question which falls for determination in this writ petition is whether the State Government is competent under the Rajasthan Panchayat Samiti and Zila Parishads Act, 1959 (for short, the Act) to issue a directive to the Collector to stay a meeting of the Panchayat Samiti convened by him to consider a motion of no-confidence against the Pradhan of the Panchayat Samiti.

2. The facts which are not in dispute may be shortly stated here. The petitioner is the Sarpanch of Gram Panchayat Hatheni and a member of the Panchayat Samiti Sewar, District Bharatpur. The non-petitioner, Sri Chand is the Pradhan of Panchayat Samiti Sewar. The petitioner, along with 14 other members of the said Panchayat Samiti, is a signatory to a motion of no-confidence against the Pradhan which was delivered to the Collector, Bharatpur on March 11, 1983. The Collector convened the Panchayat Samiti to meet on May 4, 1983, to consider the said motion. Notices for the meeting like the one received by one of the members and placed on the record as Annexure I, were issued to the members on April 15, 1983. On May 3, 1983, that is just a day before the scheduled date of the meeting, the Collector issued an order (Annexure II) staying the meeting sine die on the ground that the State Government had issued an order, dated May 2, 1983, requiring him to postpone the meeting in that manner. The petitioner filed the present writ petition on July 7, 1983, challenging the validity of the postponement on the ground that the State Government has DO power to interfere and direct the postponement of a meeting convened by the Collector under Section 39 to consider a motion of no-confidence against the Pradhan of a Panchayat Samiti and that therefore the Collector cannot lawfully postpone such a meeting. The petitioner is seeking from the court a writ or direction enjoining the State Government and the Collector Bharatpur to convene a meeting of the Panchayat Samiti Sewar for consideration of the motion of no-confidence against the non-petitioner Sri Chand at the earnest possible time.

3. The State Government and the Collector Bharatpur (non-petitioners 1 and 2, respectively) have not cared to file any return in answer to the rule nisi served on them. Sri Chand, non-petitioner 3, alone has filed a written reply in answer to the rule served on him. He has raised two preliminary objections to this writ petition. First, he says that since the petitioner did not serve any prior notice on the non-petitioners 1 and 2 demanding justice from them, the writ petition is not maintainable without demand and denial of justice. Second, it is contended that the order of the Collector dated, April 15, 1983, convening the Panchayat Samiti to meet on May 4, 1983, to consider the no-confidence motion against the Pradhan, is illegal, and that even if his subsequent order postponing the meeting indefinitely is found to be illegal, it cannot be set aside for, by doing so, this Court would, in effect, be restoring the earlier order which, it is contended, is illegal. The non-petitioner is also defending on merits the order of the State Government directing the Collector to postpone the meeting scheduled to be held on May 4, 1983. It is contended that the State Government was perfectly within its jurisdiction and power to issue such a direction to the Collector.

4. Taking up the preliminary objections first, it will be seen that there is no averment in the writ petition that the petitioner had, before filing this petition, made on the Collector any demand of justice and its denial by the latter. Broadly speaking, the law is well-settled that demand of justice and its denial must precede the filing of a writ petition asking for a direction or a writ in the nature of mandamus. Mr. Calla, learned counsel, for Sri Chand cited one such authority reported in Amrit Lal v. Collector of Central Excise, AIR 1975 SC 538, in support of this proposition. The writ of mandamus, being a high prerogative writ, cannot be demanded ex debito justitiae, but it issues only in the discretion of the court. The court is naturally reluctant to issue it unless the writ petition is founded on an affidavit of the petitioner injured stating his right in the matter in question, his demand of justice and denial thereof. But this rule is a rule of practice and not of law. The practice is derived from the principles of English law applicable to high prerogative writs; and therefore it would also apply to the issue of such writs under our Constitution. Even in English law, the rule requiring demand of justice and its denial is not an inflexible rule. In Halsbury's Laws of England (Hailsham Edition, Volume 9, page 771), the rule is stated with the qualification to the effect that 'it cannot be applicable in all possible cases'. In Commr. of Police v. Gordhan Das, AIR 1952 SC 16, the Supreme Court quoted with approval the aforementioned qualifying words from Halsbury's Laws of England stating that the law in India is not different and pointing out that a demand of justice may not be required where it is obvious that the respondent would not comply with it and therefore it would be but an idle formality.

5. The crux of the matter therefore is to find out whether demand of justice before the filing of this petition would have been but an empty formality. There is no doubt, in the facts of this case, that such a demand would have been rejected by the Collector because he was not being allowed by the State Government to perform his statutory duty under Section 39 of the Act as an authority competent to make his own decision. Section 39 charges the Collector with a mandatory duty to convene a meeting of the Panchayat Samiti to consider a motion of no-confidence against the Pradhan, on a date, 'which shall not be later than thirty days from the date on which the notice under Sub-section (2) was delivered to him'. It was in the performance of such duty that the Collector in the instant case had convened the meeting of the Panchayat Samiti Sewar on Mar. 4, 1983, and given notice (Annexure I) of the meeting to the members of the Samiti. Sub-section (5) of Section 89 lays down that a 'meeting convened for the purpose of considering a motion under this section shall not be adjourned'. The Collector, on his part, seems to be quite sure that he could not have lawfully adjourned this meeting, and that is why, perhaps, he made it a point in his order (Annexure II) dated, May 3, 1983, to explain that he had been, so to say, compelled to adjourn it under orders from the State Government. He cited the order of the State Government with reference to its number and date as the only reason for the adjournment of the meeting before it had even started. Now, if he adjourned the meeting under orders from his master, i.e., the State Government, no useful purpose ' would have been served to demand justice from him, for he was not being allowed to perform his duty under law in the exercise of his own discretion and good judgment. Any demand of justice from the State Government against the adjournment of the meeting by the Collector was also bound to be rejected, for the Collector had adjourned the meeting under orders of the State Government itself. By its illegal and unwarranted interference in the discharge of a statutory duty by one of its Collectors, the State Government had created conditions in which it could not legitimately expect the petitioner to repose confidence in its fairness and impartiality in dealing with any such demand of justice as might have been made before it against the Collector's order adjourning the meeting sine die.

6. Mention may also be made here of the fact that though the Collector and the State Government entered appearance in this Court through the Government Advocate, none of them cared to file a return with a supportive affidavit in answer to the writ petition. This clearly betrays their attitude towards the petitioner's grievance. They have ignored the petitioner's grievance as if it is none of their concerns and have thus tried to convert this litigation as a litigation between two private citizens, one trying to get the meeting of the Panchayat Samiti convened and the other resisting the convening of any such meeting. The petitioner's real grievance is against the order of the Collector, who adjourned the meeting sine die under orders from the Government, without having any legal power to order such adjournment. The silence of the Collector even after the rule nisi was granted by this Court against him strengthens the belief that left to himself he would not have adjourned the meeting and that if he had been permitted to file a return according to his own free will he would not have opposed the rule being made absolute.

7. For all these reasons. I am not prepared to dismiss this writ petition and discharge the rule merely because the petitioner did not, before filing this petition, serve on the Collector a formal notice of demand of justice. The first preliminary objection raised on behalf of Sri Chand, non-petitioner No. 3, therefore fails.

8. Turning now to the second objection raised by the non-petitioner's learned counsel, here again I do not find any substance in it. Mr. Calla's argument is that the Collector had no power to convene the meeting of the Panchayat Samiti to consider the motion of no-confidence against the Pradhan, Sri Chand, on a date beyond the period of thirty days from the date on which notice under Sub-section (2) of Section 39 of the Act had been delivered to him. For a better appreciation of the argument raised, it would be useful to reproduce here the relevant portions of Section 39. It reads:--

39. Motion of no-confidence in Pradhan or Up-Pradhan.-- (1) A notice expressing want of confidence in the Pradhan, or the Up-Pradhan of a Panchayat Samiti 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-third of the total number of members of the Panchayat Samiti, together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Panchayat Samiti,

(3) The Collector shall thereupon-

(i) Omitted.

(ii) Convene a meeting for the consideration of the motion at the office of the Panchayat Samiti on a date appointed by him, which shall not be later than thirty days from the date on which the notice under Sub-section (2) was delivered to him; and

(iii) give to the members other than the members specified in Clauses (iii), (iv) and (v) of Sub-section (1) of Section 8 notice of not less than fifteen clear days of such meeting in such manner as may be prescribed.

Explanation-- Omitted.

(4) Omitted.

(5) A meeting convened for the purpose of considering a motion under this section shall not be adjourned.

(6) to (9) Omitted.

(10) A copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon, shall be forwarded forthwith on the termination of the meeting by the Collector to the State Government and to the Zila Parishad having jurisdiction.

(11) If the, motion is carried with the support of not less than two-thirds of the total, other than the members specified in Clauses (iii), (iv) and (v) of Sub-section (1) of Section 8.

(a) the Collector shall cause the fact to be published by affixing a notice thereof on the notice board of the office of the Panchayat Samiti and by notifying the same in the Official Gazette, and

(b) the Pradhan, or Up-Pradhan as the case may be, shall cease to hold office as such and vacate the same on and from the date on which the said notice is affixed on the notice board of the office of the Panchayat Samiti.

Provided that such Pradhan shall continue to hold office as a member of the Panchayat Samiti as provided in Clause (v) of Sub-section (5-A) of Section 12.

(12) to (14) Omitted.

Mr. Calla relies on Sub-section (3) (ii) of Section 39 reproduced above in support of his argument that if the Collector does not call a meeting of the Panchayat Samiti within thirty days from the date of the delivery of the notice under Sub-section (2) to him, the notice itself lapses and if the person or persons giving such notice still desire the meeting to be convened he or they must deliver a fresh notice to the Collector in accordance with the provisions of Sub-section (2). This argument is, in my opinion, wholly devoid of force. A plain reading of Sub-section (3) (ii) would show that the legislature has charged the Collector with a mandatory duty to convene a meeting for the consideration of the motion of no-confidence and such meeting shall be called on a date which shall not be later than thirty days from the date on which the notice was delivered to him. The correlative of this duty is a right vesting in the person or persons delivering the notice under Sub-section (2) to enforce the convening of the meeting by the Collector on a date which shall not be delayed unnecessarily, and in any case the period between the date of delivery of the notice and the date on which the meeting is convened shall not extend beyond thirty days. Now, if the argument advanced by Mr. Calla were to be accepted, it would be perverting the meaning and purpose of the sub-section whereby the legislature has imposed a duty on the Collector and a correlative right on the person giving the notice. The construction sought to be placed on this sub-section by Mr. Calla would in effect mean that the Collector by his mere inaction on the notice for a period of more than thirty days can convert what was his mandatory duty to convene the meeting into a power imposing a disability on the person or persons giving the notice to have any meeting called on the basis of that notice. The legislature could not have possibly intended to perpetrate such an absurdity and, as I have explained above, the language employed by the legislature does not lend itself to any such construction as is sought to be placed on it by Mr. Calla. All that the sub-section, contains is a direction to the Collector to take prompt action on the notice delivered to him under Sub-section (2) and the meeting must be called by him within a period of thirty days. If the Collector delays the convening of the meeting beyond 30 days, the person giving the notice would have legitimate grievance against the Collector, but it is impossible to agree that the Collector can in this manner render the original notice to be ineffective. The notice remains valid and effective till it is complied with by the Collector. If he does not voluntarily comply with it within 30 days, the aggrieved party can certainly obtain from the court a directive to him requiring him to comply with it and the occasion to issue such a directive would naturally arise only after the expiry of thirty days, for if the party concerned were to approach the court before the expiry of the period of 30 days from the date of notice his grievance would be ignored on the ground that he has come to the court rather too soon.

9. All said and done therefore, I hold that the notice delivered by the petitioner to the Collector under Sub-section (2) of Section 39 of the Act remains valid and effective till he complies with it and that the mere fact that the Collector has not convened (a) meeting within a period of 30 days from the date of the delivery of the said notice to him is no ground for invalidating the notice. If the Collector does not convene the meeting within 30 days from the date of the delivery of the notice, the aggrieved party can certainly have the meeting convened on the basis of that notice even after the expiry of 30 days either by the Collector acting on his own on the persuasion of the aggrieved party or doing so under a directive issued by the court. There is thus no illegality involved in the order of the Collector, dated, April 15, 1983, convening the meeting of the Panchayat Samiti on a date (i.e., May 4, 1983) which is beyond the period of 30 days from the date (i.e., March 11, 1983) of the delivery of the notice to him. In any case, it is only the petitioner who could have some grievance against this delay, but the non-petitioner cannot have any legitimate grievance against it. His objection must be rejected as wholly artificial and absolutely invalid.

10. Lastly, I take up the argument that the State Government is competent under law to issue directions to the Collector to adjourn the meeting sine die. There is nothing in the Act which may be reasonably construed as giving the State Government any such power. On the other hand, Section 39 (5) makes it quite clear in terms that a meeting convened for the purpose of considering a motion of no-confidence cannot be adjourned on any ground whatever. Had the command of the legislature in that behalf been qualified, it would have made it clear by making an exception to the effect that such a meeting may be adjourned on a directive received in that behalf from the State Government. The State Government has not been assigned any role, appellate, revisional or otherwise, in respect of the convening of a meeting by the Collector for the purpose of considering a motion of no-confidence against a Pradhan under Section 39 of the Act. The Collector has the exclusive and unfettered power under Section 39 to deal with a notice delivered to him under sub-section (2) of that section, but he must deal with it in accordance with the provisions of that section. The State Government has no power to interfere in any manner with the proceedings of the Collector taken by him pursuant to a notice delivered under Section 39 (2) of the Act. This view is in line with an earlier ruling of this Court reported in Daula Ram v. State of Rajasthan, 1976 Rai LW 127.

11. In view of the foregoing discussion, this writ petition succeeds and is allowed. The Collector Bharatpur is directed to comply with the notice delivered to him by the petitioner and 14 others expressing want of confidence in the Pradhan, Sri Chand, by convening a meeting according to law for the consideration of the motion of no-confidence against Sri Chand within a period of one month from the date of communication of this directive to him regardless of any contrary orders which he might have received or may receive from the State Government of Rajasthan. The petitioner is entitled to his costs from all the three respondents. Counsel fee Rs. 500/-.


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