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Chander Singh Vs. the Collector, Sikar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1619 of 1972
Judge
Reported inAIR1975Raj200; 1974(7)WLN282
ActsRajasthan Panchayat Act, 1953 - Sections 4 and 19(2); Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 - Rule 14(2)
AppellantChander Singh
RespondentThe Collector, Sikar and ors.
Appellant Advocate M.R. Calla, Adv.
Respondent Advocate P.N. Dutt, Adv. for Non-Petitioner Nos. 5 to 12
DispositionPetition dismissed
Cases ReferredAbdul Jabbar v. Venkata Sastri
Excerpt:
.....14 (1)--competent authority --notice addressed to the collector but delivered to the additional district development officer --held, addl. d. d. o is a competent authority to receive notice and call a special meeting.;the mere fact that the notice was addressed to the collector, sikar, would not in any way invalidate it provided it has been delivered to the competent authority.;the additional district development officer was competent to receive the notice of motion of no-confidence and to call a special meeting and conduct the proceedings for consideration of the motion.;(d) rajasthan panchayat and nyaya panchayat (general) rules, 1961 - rule 14(2)-- attestation--signature of mover not attested mover identified by an advocate and signature admitted by the mover in presence of the..........(which will hereinafter be called 'the rules'); (b) the notice is not addressed to the deputy district development officer as required by rule 14 (1) of the rules; (c) the proceedings for calling a special meeting of the panchayat for consideration of the motion were conducted not by the deputy district development officer as required by rule 15 (1) of the rules, but were conducted by the additional district development officer, who had no authority to do so; (d) the signatures of the mover of the no-confidence motion in the notice has not been attested by an official of the state government or of a panchayat samiti propose to take up these points ad seriatum. 2. so far as the interpretation of section 19 (2) of the act is concerned learned counsel for the petitioner has submitted.....
Judgment:
ORDER

C.M. Lodha, J.

1. By this writ application under Article 226 of the Constitution of India, the petitioner, who was Sarpanch of Gram Panchayat, Bibipur Chhota, District Sikar, has challenged the motion of no-confidence passed against him on 27-9-1972. The validity of no-confidence motion is being challenged on the following grounds:--

(1) It has not been passed by 1/4th of the total number of members of the Panchayat including Sarpanch as provided by Section 19(2) of the Rajasthan Panchayat Act, 1953 (which will hereinafter for the sake of brevity be referred to as 'the Act.')

(2) That the notice of no-confidence motion dated 12-9-1972 marked Ex. 1A is bad because,--

(a) it does not set out the proposed motion of no-confidence in extenso as required by Rule 14 (2) of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 (which will hereinafter be called 'the Rules');

(b) the notice is not addressed to the Deputy District Development Officer as required by Rule 14 (1) of the Rules;

(c) the proceedings for calling a special meeting of the Panchayat for consideration of the motion were conducted not by the Deputy District Development Officer as required by Rule 15 (1) of the Rules, but were conducted by the Additional District Development Officer, who had no authority to do so;

(d) the signatures of the mover of the no-confidence motion in the notice has not been attested by an official of the State Government or of a Panchayat Samiti propose to take up these points ad seriatum.

2. So far as the interpretation of Section 19 (2) of the Act is concerned learned counsel for the petitioner has submitted that there are two conflicting Single Bench decisions of this Court on the point and, therefore, the matter may be referred to a larger Bench. In the alternative he has argued that the view taken by Modi, J., in Gokulchand v. Chief Panchayat Officer, Rajasthan, Jaipur, 1960 Raj LW 359 is correct and according to that view the motion cannot be said to have been passed in the present case by the requisite number of members of the Panchayat. It may be pointed out that the number of Panchas determined by the State Government under Section 4 (b) of the Act of Gram Panchayat Bibipura Chhota is 10 and by including Sarpanch the total number of the members of the Panchayat, the learned counsel for the petitioner contends, would be 11. The motion of no-confidence has been passed by 7 members only who were present in the meeting and voted for the motion. Seats of two members were admittedly lying vacant on the relevant date. Therefore, there is no denying the fact that there were only 9 members functioning at the time when the motion of no-confidence was passed. If the phrase 'the total number of members of the Panchayat' occurring in Section 19 (2) of the Act is so interpreted as to mean the number of Panchas determined by the State Government under Section 4, there is no doubt that the motion has not been passed by the requisite number of members. On the other hand if the phrase 'the total number of members of Panchayat' is construed to refer only to those members who were functioning at the relevant time, then, there is no gain-saying the fact that the motion has been passed by the requisite number of members.

3. In Gokulchand's case, 1960 Raj LW 359 it was held that the total number of Panchas of a Panchayat can only be a certain number, that number being fixed for it by the Government. In other words, this is the number not exclusive but inclusive of the vacancies on a certain Panchayat at a given time.

4. The question of interpretation of the term 'the total number of Panchas' again came up for consideration before Jagat Narayan, J., as he then was, in Bansidhar v. State of Rajasthan, 1967 Raj LW 156. He took a different view. According to his interpretation 'total number of Panchas' would mean 'the total number of the Panchas holding office at the Particular time'. Apparently these cases seem to take divergent views, but a closer study of the two judgments referred to above would go to show that the conflict is reconcilable. Jagat Narayan, J., relied upon Section 2 (16) of the Act and also Section 2 (16) of the Rajasthan Panchayat Samitis and Zila Parishads Act as also Section 3 (36) of the Rajasthan Municipalities Act, 1959. Under Section 2 (16) of the Act 'words and expressions used but not defined in this Act and defined in the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 shall have the meaning assigned to them in the latter.' The phrase 'total number of Panchas' has not been defined in the Act nor has it been defined in the Rajasthan Panchayat Samitis and Zila Parishads Act. But Section 2 (16) of the Rajasthan Panchayat Samitis and Zila Parishads Act lays down that ' 'words and expressions' used but not defined in this Act shall have the meanings assigned to them in the law for the time being in force relating to Panchayats, Municipalities and District Boards.' Section 3 (36) of the Rajasthan Municipalities Act 1959 reads as follows :--

' 'whole number' or 'total number', when used with reference to the members of a board, means the total number of members holding office at the time.'

This definition was held by Jagat Narayan, J., to be applicable to the Rajasthan Panchayat Act and it was further held that the total number of Panchas under Section 19 (2) would mean the told number of Panchas holding office at the time. Section 2 (16) of the Act was introduced on 9-9-1959. Gokulchand's case 1960 Raj LW 359 was decided on24-2-1960. But there is no reference to Section 2 (16) of the Act in that case. It is very likely that if this Provision had been brought to the notice of Modi, J., he might have also taken the same view as was taken by Jagat Narayan, J., in the latter case. However, in my opinion, the two views are reconcilable on account of the provision contained in Section 2 (16) of the Act to which I have made reference above. In the circumstances I do not consider it necessary to refer the matter to a larger Bench and hold that the expression 'the total number of members of the Panchayat' used in Section 19 (2) of the Act refers to 'the total number of members of the Panchayat holding office at the relevant time' and not 'the total number of the members determined by the State Government under Section 4 (b) of the Act.' In this view of the matter the motion of no-confidence cannot be struck down as not having been carried out by the requisite majority.

5. Now coming to the notice Ex. 1-A, it is true that it does not contain a draft motion of no-confidence. Rule 14 (2) provides that the notice shall set out the proposed motion in extenso. In the notice it is specifically mentioned that the notice is for motion of no-confidence against the Sarpanch and the grounds in support of the motion have been set out. It does not appear to be the intention of the Legislature that the notice must be accompanied by a draft resolution. All that is required is that the proposed motion must be set out in detail so that the person against whom the motion is put may be in a position to meet it and the members participating in the debate may also be fully apprised of the proposed motion. Looked at from this stand point, there is no escape from the conclusion that there has been substantial compliance with the provision and the impugned resolution cannot be struck down on this score.

6. Another contention in this connection is that the notice was not addressed to the Dy. District Development Officer as required by Rule 14 (1) of the Rules. Learned counsel for the petitioner is correct in his contention that the notice has been addressed to the Collector, Sikar, but it is clear from Annexure A-5 & Annexure A-6 that it was presented before the Additional District Development Officer. The contention of the learned counsel for the petitioner is that the Additional District Development Officer was not competent to receive the notice nor was he competent to call a meeting and conduct the proceedings. I shall deal with this contention a little later, but for the present I wish to point out that the mere fact that the notice was addressed to the Collector, Sikar, would not in any way invalidate it provided it has been delivered to the competent authority. As already pointed out above, the notice was delivered to the Additional District Development Officer and if the Additional District DevelopmentOfficer was competent to receive it, then the notice would not be invalidated.

7. At this juncture I may also deal with the question whether the Additional District Development Officer was competent to receive the notice of the motion of no-confidence. It appears that the provision prescribing the authority who would entertain the notice of no-confidence motion has undergone changes from time to time. Prior to 6-6-1966 it was the Collector. By an amendment published in the Rajasthan Gazette part 4 (c) (Extra ordinary) dated 6-6-1966 'Deputy District Development Officer' was substituted for 'Collector'. Then by an Order dated 28-11-1972 the Government of Rajasthan directed that an officer in senior scale of R. A. S. holding the post of Deputy District Development Officer would be designated as Additional District Development Officer. This notification has been reproduced in extenso by the respondents Nos. 5 to 11 in their reply dated 12-3-1974 at page 76. It is mentioned in the notification that the Government vide letter dated 15th June. 1972, addressed to the Accountant General, Rajasthan, Jaipur has conveyed the sanction to the designation of the post of Deputy District Development Officer held by in the senior scale of R. A. S. being changed to Additional District Development Officer. It has been contended on behalf of the petitioner that there is nothing on the record to show that the Deputy District Development Officer, Sikar, was a senior scale R. A. S. Officer and consequently the Deputy District Development Officer, Sikar did not become the Additional District Development Officer. It is true that it has not been mentioned in the reply by respondents Nos. 5 to 11 in so many words, but since the notice was received by the Additional District Development Officer, it would be reasonable to presume that the erstwhile Deputy District Development Officer, Sikar, was redesignated as Additional District Development Officer. Regularity of official acts, in the circumstances of the case, must be presumed, specially when there was no provision for Deputy District Development Officer and Additional District Development Officer to be posted side by side in the same District. I am, therefore, of the opinion that the Additional District Development Officer was competent to receive the notice of motion of no-confidence and to call a special meeting and conduct the proceedings for consideration of the motion.

8. There is yet another defect pointed out by the learned counsel for the petitioner in the notice and that is regarding the attestation of the signature of the mover of the motion. In the copy of the notice Ex. 1A submitted by the petitioner the signature of Shivnath Rai, mover of the motion, is not attested at all, whereas in the certified copy of the notice Annexures A-5 and A-6 submitted by respondent No. 4 the signatoryShivnath Rai, has been identified by Shri Jagan Singh, Advocate, and there is a further endorsement by Shri Roop Ram Vyas, Additional District Development Officer, marked Annexure A-6, wherein it is mentioned that the notice had been presented by Shivnath Rai, who was identified by Shri Jagan Singh, Advocate, who was known to the officer and that Shiv Nath Rai admitted his signature on the notice before the officer.

9. Learned counsel for the petitioner submitted that in the first place respondent No. 4 Shiv Nath Rai who produced copies of Annexures A-4 and A-6, has not appeared to contest the writ petition and, therefore, the other respondents cannot take advantage of these documents. This argument is to be stated only to be rejected. I fail to see any reason why the co-respondents are not entitled to use documents produced by one of them, if they are admissible and relevant. His contention further is that this is no valid attestation of Shivnath Rai's signature. In support of his contention he has relied on Abdul Jabbar v. Venkata Sastri, AIR 1969 SC 1147 wherein their Lordships have laid down the essential ingredients of the word 'attested' as defined in Section 3 of the Transfer of Property Act. In my opinion the Supreme Court case is not applicable to the facts and circumstances of the present case. Rule 14 (2) lays down that the signature of the mover shall be attested by an official of the State Government or of a Panchayat Samiti. The purpose behind this provision is that there may not be any forgery or impersonation. There is no denying the fact that Shri Roop Ram Vyas, Additional District Development Officer was an official of the State Government and also of the Panchayat Samiti. The mover of the motion Shivnath Rai admitted before him that the notice bore his signature. Shivnath Rai was identified by Shri Jagan Singh, Advocate. Thus, in my opinion, the provision was substantially complied with. The objection by the learned counsel for the petitioner, however, is that Shri Vyas is the person to whom the notice of the motion was delivered and his endorsement cannot be taken as an attestation. He has argued that just as an endorsement of a Registrar in case of a registered document, cannot be taken as an attestation so also the endorsement by the Additional District Development Officer is of no avail. In my opinion it would not be proper to import the provisions pertaining to 'attestation' of a registered document into a case like the present which is governed by the provisions of the Act. As already stated above, the provision regarding attestation of the signature of the mover of the motion has been substantially complied with. In this view of the matter the defect regarding attestation pointed out by the learned counsel cannot invalidate the notice or the resolution on its basis.

10. The net result of the foregoing discussion is that this writ application has noforce and is hereby dismissed. But there will be no order as to costs.


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