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Bhoorekhan Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 811 of 1975
Judge
Reported in1975(8)WLN524
AppellantBhoorekhan
RespondentThe State of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredHarichand v. Betata
Excerpt:
rajasthan panchayat and nyaya panchayat (general) rules, 1961 - rule 15--no confidence meeting presided over by naib tehsildar working as tehsildar--held, meeting is not invalid.;there is no statutory mandate that such meeting shall be presided over by an officer of a particular rank. from the reading of rule 16 of the rules it is evident that the legislature did not intend that the functions to be performed under rule 10 must be performed by officer of a particular rank and by no one else. any officer of any rank was competent enough 10 preside at such meeting if so authorised by the addo.;merely because the presiding officer of the impugned meeting was not a full fledged tehsildar could not vitiate the proceedings.;(b) constitution of india - article 226--issue of writ--sarpanch lost..........the tahsildar in charge was not a full fledged tahsildar and was never appointed by the addo to preside over the meeting nor could he preside over the meeting as he could discharge the routine functions in the absence of the tahsildar. the meeting was, therefore, wholly invalid and no confidence, motion at all passed was wholly invalid.3. the petition has been opposed the respondents nos. 5, 7, 8, 10, 11, 13, 14 and 15, who have submitted a joint reply. in the reply it has been firstly said that no venue of the meeting was changed as alleged by the petitioner. secondly, the meeting was presided over by a competent officer who was acting a tahsildar incharge.4. a joint reply has also been filed on behalf of the state of rajasthan the addo jhunjhunu and the naib tahsildar cum.....
Judgment:

M.L. Joshi, J.

1. The petitioner in this petition under Article 226 of the Constitution of India seeks an appropriate order, writ or direction for quashing the proceedings of the meeting dated 24th of April, 1975 and further declaring that no no-confidence motion against him was passed in the said meeting and that the respondents be restrained from interfering in the discharge of his duties as Sarpanch.

2. There is a Gram Panchayat known as Gram Panchayat of village Kayamser Dhandhoori in District Jhunjhunu having total strength of twelve members. The petitioner was elected as Sarpanch of the Panchayat. According to the petitioner the meeting of the said Gram Panchayat hid been taking place at the village Kayamser Dhandhoori. A no-confidence motion against be petitioner was delivered to the concerned Additional District Development Officer herein-after to be referred to as the ADDO with a proposal expressing want of confidence in the petitioner. The said ADDO by his order dated 7th of April, 1975, appointed the Tehsildar Jhunjhunu to preside over the meeting to be held in respect of no confidence motion. Later on the ADDO issued a notice fixing the date for consideration of the no confidence motion as 24th of April, 1975, the Naib Tahsildar Jhunjhunu was acting as Tahsildar Incharge as office of the Tahsildar was lying vacant on account of the transfer of the Tahsildar. On 24th of April, 1975, the Niab Tahsildar (Tahsildar Incharge, Jhunjhunu) held the meeting at a place which according to the petitioner was different from the usual place of meetings of the Panchayat. An objection was raised by the petitioner to the change of venue but the same was turned down by the Tahsildar Incharge and the meeting was held in a room adjacent to Piao. It is alleged that the petitioner did not attend the meeting throughout and that only nine Panchas were present in that meeting and that two of the Panchas, namely, respondents Nos. 6 and 9 were not present in it. The meeting was presided over by the Tahsildar Incharge and the nine Panchas present in the meeting voted for no confidence motion which fact is now disputed by the petitioner. It is further said that the respondents Nos. 6 and 9 bad proceeded to the usual place of venue of the meeting so they could not attend the meeting The petitioner has further alleged that Shri Chatura Ram respondent No. 12 and Malji respondent No. 11 had informed the petitioner that they had actually voted against the no-confidence motion but their votes were wrongly counted by the Presiding Officer for the motion and the petitioner has along with the writ petition submitted their affidavits to that effect. The petitioner has challenged the validity of the no confidence motion and the proceeding? of the meeting in that behalf in his writ petition mainly on two grounds:

(1) The proceedings of the meeting id respect of non-confidence motion are wholly illegal as the venue of the meeting was changed and thus depriving two Panchas from attending the meeting.

(2) The Tahsildar In charge was not a full fledged Tahsildar and was never appointed by the ADDO to preside over the meeting nor could he preside over the meeting as he could discharge the routine functions in the absence of the Tahsildar. The meeting was, therefore, wholly invalid and no confidence, motion at all passed was wholly invalid.

3. The petition has been opposed the respondents Nos. 5, 7, 8, 10, 11, 13, 14 and 15, who have submitted a joint reply. In the reply it has been firstly said that no venue of the meeting was changed as alleged by the petitioner. Secondly, the meeting was presided over by a competent officer who was acting a Tahsildar Incharge.

4. A joint reply has also been filed on behalf of the State of Rajasthan the ADDO Jhunjhunu and the Naib Tahsildar cum Officiating Tahsirdar Jhunjhunu. While traversing the allegations of the petitioner in regard to the, change of venue, the respondents Nos. 1, 2 and 3 have further stated that the meeting was presided over by Shri Tafzel Hussain who held the office of the Tahsildar at the relevant time. It has been further stated that the petitioner himself had participated in the proceedings of the meeting and he having lost confidence of big majority could not be allowed to retard the course of democracy by imposing himself as a Sarpanch on a minconceived technical ground.

5. A rejoinder has been filed to the reply of the respondents wherein no new point has been made out and the grounds raised in the writ petition have been only reiterated.

6. The petitioner has based his writ petition mainly on two grounds viz. (1) that the person who presided over the meeting in respect of the no-confidence motion was not competent and, therefore, the meeting was invalid; and (ii) that the aforesaid meeting was not field at the place where it was required to be held and, therefore, on that account also the proceedings in the said meeting were vitiated.

7. During the course of the arguments the petitioner gave up the ground No. 2 stating that he would not press that ground Consequently I am left with one ground only for the purpose of the disposal of the writ petition.

8. The meeting has been impugned to be invalid by the petitioner on the ground that it was not presided over by the Tahsildar but by a Naib Tahsildar who was merely an Incharge Tahsildar. The argument of the learned Counsel for the petitioner in this behalf is like this. The ADD authorised only the Tahsildar who was then in the office. The ADDO in the event of not presiding over the meeting in respect of no confidence motion was required to apply his mind for authorising a particular person to preside over the meeting. It is said that at the time when the ADDO passed the order authorising the Tahsildar to preside over the meeting the person having full fledged power of Tahsildar was holding the office of the Tahsildar and so it should be presumed that the person holding the post of a Tahsildar could only preside over the meeting. The Naib Tahsildar who when holding the office of Tahsildar as Tahsildar Incharge was entitled to perform the routine cuties only and was therefore, rot competent to preside over tie meeting as presiding over such a meeting could not be taken to be a routine function and consequently the proceedings of the meeting stood vitiated.

9. I have given my earnest and anxious consideration to this contention. Rule 15 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules 1961, hereinafter called the Rules, authorised the ADDO of any other officer authorised by him in this behalf to preside over meeting in respect of no confidence motion. Parties are on common ground that the ADDO had authorised the Tahsildar to preside over the meeting. It is submitted that Shri Tafzel Hussain was substantive Naib Tahsildar acting as merely a Tahsildar Incharge and was, therefore, not competent to preside over such a meeting under the authorization made by the ADDO h has been contended by the named counsel that Naib Tahsildar is inferior in rank to the Tahsildar and in the absence of Tahsildar although he is competent to act as Tahsildar Incharge he was entitled to carry on the routine duties of a Tahsildar in view of Section 29 of the Rajasthan Lind Revenue Act. It is true that under Section 29 of the Land Revenue Act in the absence of an officer equal grade functioning at his bead-quarters and if there is no officer of an equal grade there, any other officer of a superior grade so functioning or if there be no superior officer, any other officer of an inferior grade so functioning shall in addition to his ordinary duties assume charge of the office of the absentee officer and shall continue in charge thereof until the office is assumed by another officer duly appointed there to and, while in such charge, perform the routine duties of the absentee officer. The whole emphasis of the learned Counsel for the petitioner is on the performance of the routine duties by the incharge officer and it his been strenuously urged that a person who is entitled to discharge routine duties was wholly incompetent to preside at the meeting in respect of non-confidence motion which function was not of a routine character. The argument though apparently plausible if scrutinized with some depth does not seem to be valid, it may be pointed out that under Rule 15 of the Rules the ADDO can authorise any officer to preside at such meeting. There is no statutory mandate that such meeting shall be presided over by an officer of a particular rank. From the reading of Rule 15 of the Rules it is evident that the legislature did not intend that the functions to be performed under Rule 15 must be performed by officer of a particular rank and by no one else. Any officer of any rank was competent enough to preside at such meeting if so authorised by the ADDO. It has to be kept in mind that the Tahsildar Incharge was not exercising the statutory functions under the Act but was merely discharging functions under a power conferred by a duly authorised and competent officer, namely, the ADDO under Rule 15 of the Rules Under the Land Revenue Act certain statutory functions have been assigned to the Tahsildar under the various Acts and some functions to the Nail Tahsildar. The statutory functions which are exercisable by a Tehsildar under particular Acts of course cannot be exercised by a Naib Tahsildar and he could in such cases lookafter the routine duties of the Tahsildar in his obscene but that is not the case here. As stated earlier, any officer could be empowered by the ADDO to preside at a meeting in respect of no confidence motion. Merely because the presiding officer of the impugned meeting was not a full fledged Tahsildar could not vitiate the proceedings on the basis of Section 29 of the Land Revenue Act as he was not discharging the statutory functions of a Tahsildar where the tank of the officer is of great importance The rank of a Tahsildar as such is not of prime importance for a person to function under the powers conferred under Rule 15 of the Rules.

10. It has been then contended by the learned Counsel for the petitioner that the ADDO authorised only the then Tahsildar and not the Tahsildar Incharge who assumed the charge as such on the transfer of the then Tahsildar. This argument, however does not impress me at all. It may be at once stated that the ADDO had not by his order dated 7th of April, 1975, appointed the Tahsildar Jhunjhunu as persona designata as persona designata is a person selected as an individual in his private capacity and not in his capacity as filling particular character or office vide Harichand v. Betata Engineering Co. : 1969CriLJ803 para 12 All that the ADDO had directed by his order dated 7th of April, 1975, was that a person holding the office of Tahsildar should preside at such a meeting. The Naib Tahsildar was holding that office as a Tahsildar Incharge. There is no restriction or limitation in the aforesaid order of the ADDO against the Tahsildar Incharge to preside at such meeting as under Rule 15 of the Rules, officer of any rank could be empowered to preside. The argument that the presiding over the meeting in respect of no confidence motion is not of a routine nature, in my opinion, is whole misconceived in view of the express provision of Rule 15, as under that Rule any person authorised by he ADDO could preside at such a meeting irrespective of rank. The decisions Vishwanath v. Pt. Jhamanlal 1957 RLW 536, Ramkishan v. State of Rajasthan 1964 RLW 120, Madanlal v. State of Rajasthan 1965 RLW 342, Ramkaran v. Dy. Distt. Development Officer Nagore 1966 RLW 617, Hari Vishnu v. Ahmed Ishaq : [1955]1SCR1104 and Harichand v. Batata : 1969CriLJ803 relied upon by the learned Counsel for the petitioner are distinguishable and not applicable to the facts of this case. In Vishwanath v. Pt Jhamanlal 1957 RLW 536 under the statutory Rules the District Magistrate and the District Magistrate alone had a right to fix the date, time and place of meeting of the Board for the election of the Chairman. In mat case the meeting as not called by be District Magistrate who was the only competent person. It was in the background of the statutory Rule 3 of the of the Rajasthan Town Municipalities (Chairman Election) Rules, this Court held that the meeting called by the Sub-Divisional Magistrate was invalid even the though all the members were present. There in that case the mandatory statutory Rule 3 was infringed and, therefore, the proceedings of the meeting were held to be visited. There is no such statutory infringement in this case.

11. In Ram Kishan v. State of Rajasthan 1964 RLW 120 the point raised was that the officiating Tahsildar was not competetent to conduct retirement proceedings under the Section 27C(7) of the Rajasthan Panchayat Act Section 27C(7) of the Act made provisions for retirement of members of the Nyaya Panchayat on the expiration of every second year in accordance with Rules made is that behalf by the State Government, Rule 64 so made provided that the officer not below the rank of a Tahsildar was to be authorised by the ADDO to convene a meeting and to preside at such meeting It was mandatory statutory requirement of Rule 64 that the presiding officer should not be below the rank of a Tahsildar. In that case despite the prohibition laid down in Rule 64 a Naib Tahsildar who was acting as Incharge Tahsildar presided at such meeting. That was clearly in contravention of the mandatory provisions of Rule 64 as the Naib Tahsildar holding the office as a Tahsildar Incharge was certainly below the rank of Tahsildar. In that case what was important was the rank prescribed by the Rule itself which is not the case here is in the case before ms the ADDO could appoint any officer of any rank to preside at the meeting in respect of no-confidence motion.

12. The next case is Madanlal v. State of Rajasthan 1965 RLW 342. In that case it has of course been held that the administration of oath is not merely a ministerial act. In that ease one Sardar Singh S.D.O. Revenue, Karanpur, was appointed by the Collector, Ganganagar, to preside over the meaning of the members of the Municipal Board, Karanpur for election of the Chairman of the said Municipal Board in she exercise of the statutory power conferred upon the Collector under Sub-clause (11) of Clause (2) of the Rajasthan Municipal Election of Chairman Rules 1959 read with Section 65 of the Municipalities Act Shri Sardarsingh was, However, not authorised to administer oath of the office to the elected members. Under Section 61 of the Municipalities Act every member of the Municipal Board before entering upon the duties had to make and subscribe before the Collector or his nominee an oath or affirmation in the prescribed form. There was no authorization in favour of Sardar Singh in connection with the administration of oath, which was a minimum statutory requirement. It was in this view of the matter that the oath administered by Sardarsingh was not taken to be valid as it was not held to be merely a ministerial matter and election of Chairman and Vice Chairman by such members was therefore held to be invalid.

13. Another case is Ramkaran V. Dy. Distt. Development Officer Nagore 1966 RLW 617. In that case no confidence motion against Shri Binsilal Sarpanch was handed over to District Development Officer Nagore by one Ramlal a Panch. A meeting was convened for the discussion of the no confidence motion but on a writ petition proceedings of that meeting were stayed. There after other no confidence motion was handed over to the Collector against the said Sarpanch who directed the mover to present the same to the Deputy District Development Officer as he had no power to convene the meeting and the same was presented by the mover to the District Development Officer, who, however, refused to convene a meeting. The mover then filed the writ petition for direction to the Collector to convene a meeting for the disposal of the no-confidence motion, Thereafter a notification was published in the Rajasthan Gazette where by the powers for convening the meeting were vested in the joint Development Officer One Ramkaran after the notification handed-over another motion of no confidence against Bansilal to the District Development Officer who refused to consider the motion on account of the stay order issued by this Court in the previous writ petition. Therefore a writ petition was filed by Ramkaran praying for a direction to the Deputy District Development Officer to convene the meeting for the disposal of the no confidence motion. This Court after taking notice of certain notifications made in the exercise of statutory power came to hold that the Joint Development Commissioner, was the officer Incharge of the Panchayat who was authorised to convene a meeting for disposal of no confidence motion and that the Deputy District Development Officer had no power to receive a motion of no confidence or to convene a meeting I fail to comprehend how this case is of any help to the petitioner. This case was decided in the light of powers conferred under the statutory notification on the joint Deputy Development Officer to receive no confidence motion and the same having not been presented to such an officer was of course invalid.

14. Harivishnu v. Ahmed Ishaq : [1955]1SCR1104 bas no application whatsoever in the matter and does not require any further reference as it relates to the mode of expression of intention in the matter of casting the vote.

15. Another case cited in this behalf by the learned Counsel for the petitioner is Harichand v. Betata : 1969CriLJ803 . In this case the Central Government had delegated its powers under Section 29 of Defence of India Act to District Magistrate in the matter of requisition of the property. The powers were exercised by the Additional District Magistrate. Now the District Magistrate had to be then appointed under Section 10(1) of the Code of Criminal Procedure. The Additional District Magistrate although conferred with powers of District Magistrate under Section 10(2) of he Code was not a District Magistrate who was the only person empowered to requisition the property It was in this view of the matter that their Lordships of the Supreme Court held that the order passed by the Additional District Magistrate was invalid.

16. It may be stated here that in all the total strength of the Panchas comprised 12 members, out of which 9 members had voted against the petitioner. The argument that Chatura Ram and Malji did not vote for no confidence motion does not appeal to me. They had initially filed affidavits to that effect but later on retracted from them by submitting fresh affidavits. No bias or prejudice has been imputed to the presiding officer. Further more, the petitioner himself was present at the meeting which fact is established by his signature on the proceedings of that meeting and which fact has not been disputed before me by learned Counsel for the petitioner at the Bar. The petitioner bad, however, no courage to say on his personal knowledge that Chatura and Malji voted against the no confidence motion but has rest contended to base his assertion on the information of Cbatura and Malji who themselves retracted from the alleged information in their subsequent affidavits. In the circumstances it is difficult to believe at Chatura Ram & Malji's votes were wrongly counted by the Presiding Officer who had no axe to grind. It is well settled principle of democracy that the person who has lost the confidence of the members of a democratic institution should not be allowed to stay against the will of the members of that institution. The writ of mandamus or certiorari does not issue as a matter of course but is a writ of discretionary nature. Locking to the facts and circumstances of the case, this Court is not at all inclined to entertain the plea of technical nature to permit the petitioner who bas lost the confidence of the members of the Panchayat. This Court is therefore not disposed to help such a person in the exercise of its extra ordinary jurisdiction.

17. The petition is, therefore, dismissed with costs to each set of cent testing respondents who has submitted separate replies.


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