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Ramchandra Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Writ Petition No. 305 of 1973
Judge
Reported in1974WLN753
AppellantRamchandra
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredGangasahai v. Deputy District Development Officer
Excerpt:
.....authority charged with final action has acted upon it. i have no doubt, in my mind, that once the notice of motion of non-confidence has been placed in the meeting called for the purpose there can be no withdrawal of the same thereafter. the additional district development officer was not at all the authority charged with final action on the motion. in fact he had no say in the matter except to call a meeting for consideration of nonconfidence motion.;the notice of motion of nonconfidence could be withdrawn by its author before it actually came up for consideration before the meeting called for the purpose. in the present case the notice had been given by hajikhan alone and since he had withdrawn it before the date fixed for the meeting, the notice did not become effective. - - 1..........panchayat, shivbari in the year 1 65 on 29-12-1972 the nonpetitioner no. 4 delivered a notice of motion nonconfidence against the petitioner to the additional district development officer, bikaner on which the additional district development officer, bikaner (who will hereinafter be referred to as the non petitioner no. 2) called a special meeting of the panchayat to be held on 12-1-1973 for consideration of the motion and authorised the tehsildar, bikaner nonpetitioner no. 3 to preside at the meeting. on 9.1.1973 haji khan made an application to the non-petitioner no. 2 that he wanted to withdraw the notice of non confidence moved by him. the petitioner's case is that inspite of hajikhan's desire to withdraw the notice, the meeting was held on 12.1.1973 it may be stated here that the.....
Judgment:

C.M. Lodha, J.

1. The petitioner Ram Chandra, Surpanch, Gram Panchayat, Shivbari, Tehsil Bikaner has filed this writ petition praying that the orders passed by Additional District Development Officer, Bikaner, dated 291-1973 and 3-2-1973 marked Annexure 3 and 3 respectively holding that nonconfidence motion against the petitioner has been carried out, be set aside. The relevant facts necessary for the purpose of disposing of this writ petition may be briefly stated as follows.

2. The petitioner was elected as Sarpanch of Gram Panchayat, Shivbari in the year 1 65 On 29-12-1972 the nonpetitioner No. 4 delivered a notice of motion nonconfidence against the petitioner to the Additional District Development Officer, Bikaner on which the Additional District Development Officer, Bikaner (who will hereinafter be referred to as the non petitioner No. 2) called a special meeting of the Panchayat to be held on 12-1-1973 for consideration of the motion and authorised the Tehsildar, Bikaner nonpetitioner No. 3 to preside at the meeting. On 9.1.1973 Haji Khan made an application to the non-petitioner No. 2 that he wanted to withdraw the notice of non confidence moved by him. The petitioner's case is that inspite of Hajikhan's desire to withdraw the notice, the meeting was held on 12.1.1973 It may be stated here that the number of Panchas fixed by the State Government under Section 4 of the Rajasthan Panchayat Act, 1953 (which will hereinafter be called 'the Panchayat Act') is 13 but 4 seats had fallen vacant and the number of Panchas functioning for the time being was 9 out of whom 8 including the Sarpanch were present and one Jeewan Ram was absent. Six admittedly voted for the motion One Panch named Smt. Aysha is alleged to have voted against the motion. Her vote is a matter of dispute to which detailed reference will be made hereafter. It may be relevant to state here that as required by Section 19 of the Panchayat Act the motion of nonconfidence against a Sarpanch must be carried by a majority by not less then 3/4th of the total number of members of the Panchayat including the Sarpanch. The Tehsildar held that since the total number of Panchs was 13, the motion could not be said to have been carried unless 3/4th of the total number of members, i.e. 10 vote for the motion. He further held that only six Panchas had voted for the motion and therefore the motion was lost Accordingly, he drew the proceedings of the meeting (Ex. 1) & declared the motion to have been lost A copy of the report of the meeting prepared by the Tehsildar has been placed on the record and marked Ex.1 Dis-satisfied with the report of the Tehsildar. Hajikhan made an application to the nonpetitioner No 2 of the same day and submitted that Smt Aysha's vote had been wrongly counted against the motion as in fact she had voted for motion.

3. A preliminary objection was raised on behalf of the petitioner before the nonpetitioner No 2 to the effect that the latter had no jurisdiction to (sic) the order of the Tehsildar. But the nonpetitioner No 2 by his order da ed 29 1 1973 (Annexure 3) held that he had jurisdiction to enquire into the correctness or otherwise of the report made by the Tehsildar He also held that the notice of nonconfidence motion could not have been subsequently withdrawn by Hajikhan and that the meting held on 12-1-1973 for consideration on nonconfiderce motion was in order.

4 Having over-rued the preliminary objection raised on behalf of the petitioner, the nonpetitioner No. 2 recorded evidence on the factual aspect of the matter and by his order dated 3 2-1973 (Annexure 4) he held that Smt. Aysha bad in fact voted for the motion He also Came to the conclusion that the total number of Panchas for the purpose of Section 19(2) of the Panchayat Act must be taken to be nine, who were actually functioning. In this view of the matter, he set aside the order of the Tehsildar and held that the motion of nonconfidence had b en carried against the petitioner. As a necessary corollary he directed the petitioner to submit his resignation within 3 days from his order, and in case he failed to do so, he further directed that action be token for his removal under Rule 18 of the Raja, than Panchayat and Nyaya Panchayat (General) Rules. 1961 (which will hereinafter be called 'the Rules') Aggrieved by the aforesaid orders of the nonpetitioner No 2, the petitioner filed a revision application before the State Government and succeeded in obtaining an interim stay order for stay of the proceedings for his removal. Hajikhan there upon fifed a writ application before this Court challenging the action of the State Government in staving the proceedings. This writ application was registered as S.B Civil Writ No 242/1973: Hajikhan v. State of Rajasthan and Ors. In that writ petition this Court by its order dated 9.3.1973 stated the operation of the order of the State Government staying the proceedings, and it appears that later on, the State Government itself withdrew the stay order passed by it and that writ application was dismissed on 12-7-73 as having become infructuous. It further appears that the State Government by its order dated 22.3.1973 has finally dismissed the revision application filed by the petitioner on the ground that is had no jurisdiction to entertain a revision application against the orders of the nonpetitioner No. 2. But meanwhile the petitioner filed this writ petition in this Court on 15-3 1973.

5. The writ petition has been opposed by the State of Rajasthan as well as the members of the Panchayat who had voted for the nonconfidence motion, including Smt. Aysha.

6. At one stage a preliminary objection was raised on behalf of the contesting non petitioners that the petitioner should have first approached the State Government before in woking the extra-ordinary jurisdiction of this Court. This objection, in my opinion, is not well founded for two reasons: firstly, Hajikhan himself had raised an objection in writ petition No. 242/73 that the State Government had no jurisdiction to entertain a revision petition against the orders of the nonpetitioner No. 2, and it does not lie in the mouth of Hajikhan or for that matter other members who are supporting Hajikhan now to turn round and say that the State Government bad jurisdiction to entertain the revision petition, and the petitioner must first approach the State Government. The second reason for over ruling this preliminary objection is that, as it has transpired in the course of arguments of this writ application that the State Government Has already rejected the petitioner's revision application (vide its order dated 22-3-1973). A copy of the State Government's Order dated 22-3-1973 has been placed on the record.

7. Now coming to the merits of the case the following three points have been argued by the leraned Counsel for the petitioner:

(1) That the nonpetitioner No. 2 had no jurisdiction to enquire into the correctness or otherwise of the report by the Tehsildar that the motion of nonconfidence against the petitioner had been lost.

2. That the nonpetitioner No. 2 had wrongly interpreted the term 'total number of members of the Panchayat' occurring in Section 19(2) of the Panchayat Act in as much as it referred to the number of Pancbas fixed by the State Government under Section 4 of the Act and not members of the Panchayat for the time being.

(3) That the notice of motion of nonconfidence having been withdrawn by its author before the meeting for its consideration was held, the authority concerned had no jurisdiction to call the meeting for consideration of the nonconfidence motion.

8. I propose to take up these points in the same order in which I have set out them above.

9 The relevant provisions under the Rules of 1961 dealing with non-confidence in Sarpanch or Up-Sarpanch are (sic) in Rules 14 to 18. It has been argued by Mr. Dutta, leraned Counsel for the petitioner, that the nonpetitioner No. 2 had delegated his authority of presiding at the meeting to the Tehsildar, who as Presiding Officer had exclusive jurisdiction to decide whether the motion was lost or was carried by a majority as required by law and the nonpetitioner No 2 having delegated his authority to the Tehsildar had thereafter no jurisdiction to sit in judgment over the findings arrived at by the Tehsildar. His argument is that if the Presiding Officer comes to the conclusion that the motion is lost them he may make a declaration to the effect and the matter is over. He goes on to argue that it is only if the motion is held to have been carried by a majority specified in Sub-section (2) of Section 19 of the Panchayat Act that the Presiding Officer is required to forward the proceedings in original to the officer-in-charge of the Panchayat or the officer or authority referred to in Clause 14 of Rule 16 as required by Rule 17 of the Rules and it is upon the receipt of the proceedings that the officer in-charge of Panchayat, if convinced of the motion of nonconfidence having been carried that he may declare the office to have become vacant and call upon the Sarpanch to submit his resignation if he has not already done so. In this connection he has referred to Rules 17 and 18 of the Rules of 1961, and I may reproduce them here for ready reference:

17. Report of the meeting - If the motion is lost a note to that effect shall be recorded by the presiding officer in the proceeding drawn up under Rule 16 and he shall disperse the meeting after declaring the motion to have been lost.

(2) If the motion is carried by a majority specified in Sub-section (?) of the Section 19, the Presiding Officer shall

(i) likewise make a note in the said proceeding,

(ii) declare the motion to have been carried,

(ii) invite the attention of the Sarpanch or Up Sarpanch against whom the motion has been so carried, if present, to the provision of the said Sub-section requiring him to resign within three days, and

(iv) forward the proceeding in original to the officer-in-charge of Panchayat or the officer or authority referred to in Clause (xiv) of Rule 16 under cover of the letter communicating to him the fact of the motion of non confidence against the Sarpanch or the Up-Sarpanch, as the case may be, having been so carried.

18. Subsequent action: (1) Upon receipt of the proceeding, the officer in charge of Panchayat or other authority referred to in Clause (xiv) of Rule 16 shall, if the motion of non-confidence has been carried and the resignation of the Sarpanch or Up-Sarpanch against whom it has been carried has already been received by him, accept such resignation and declare his office to have become vacant.

(2) If the resignation shall not have been received, he shall call upon such Sarpanch or Up-Sarpanch to submit the same within a week and send directions to the Panchayat Office to treat him as having been suspended from office.

(3) If within the time mentioned in Sub-rule (2) the resignation is received, the declaration mentioned in Sub-rule(1) shall be made but, if the same is not so received, such Sarpanch, Up-Sarpanch shall by order, be removed from office

(4) A declaration or order of removal made under the foregoing Sub-rules shall be forth with notified in the official Gazette.

10. The question as to what is the effect of the delegation by the Additional District Development Officer of his authority to preside at the meeting has been debated at a considerable length by the learned caunsel for the parties. Leraned Counsel for the petitioner on the basis of Raghunath Rai v. The State of Rajasthan and Ors. ILR 1957 (7) Raj 993 contended that as soon as the Additional District Development Officer authorised the Tehsildar to preside at the meeting for consideration of non-confidence motion, he completely divested him-of the powers under the Rules to decide the question whether the motion was lost or was carried by a majority as required by law. In this connection leraned Counsel also relied upon BM Corporation v. Dhondu : [1965]2SCR929 . Or the other hand Mr. Kalla, leraned Counsel for the nonpetitioners Hajikhan and Ors. relied upon Gangasahar v. Deputy District Development Officer, Sawai Madhopur and Ors. ILR 1968 (18) Raj 685, and an unreported judgment by a Single Judge of this Court: in S.B. Civil Writ Petition No 207G/1971: Somdutt Purohit v State of Rajasthan, decided on 20.1101973, and urged that by merely authorising the Tehsildar to preside at the meeting the Additional District Development Officer did not lose the power to decide the question whether the motion was lost or carried.

11. In the alternative he relied upon Section 77 of the Panchayat Act, and submitted that under Caulse. (e) of the Said Section the State Government or any officer generally or specially authorised by the State Government in this behalf may institute an enquiry against the Sarpanch...in respect of any matter relating to a Panchayat. It has been further brought to my notice that the powers of the StateGovernment Under Section 77 have been delegated to the Collector of the District as well as to the Additional Development Officer.

12. In my opinion the State Government or for that matter the officer generally or specially authorised by the State Government in this behalf has power to institute an enquiry against a Sarpanch in respect of any matter relating to a Panchayat. The question whether a nonconfidence motion against the Sarpanch has been carried is undoubtedly a matter relating to a Panchayat and the Sarpanch. In this view of the matter the enquiry into the question whether a nonconfidence motion against the Sarpanch had been carried by the requisite majority falls within the ambit of Section 77(e) of the Panchayat Act As already stated above the powers Under Section 77 have been delegated to the Additio-District Development Officer, The Additional District Development Officer, (sic) Tehsildar to preside at the meeting for consideration of non-confidence motion but by this act be cannot be said to have delegated the authority he had Under Section 77 of the Panchayat Act. As a matter of fact such authority could not be delegated at all under the law as he himself is a delegated of the State Government I have, therefore, come to the conclussion that irrespective of the question whether the Additional District Development Officer had power to revise the order of the Tehsilder under Rules 17 and 18 of the Rules of 1961, he had certainly authority Under Section 77 of the Act as a delegated of the State Government to institute an enquiry into the question whether the motion of nonconfidence had been lost or carried by the requisite number against the petitioner. In this view of the matter I am unable to accept the contention raised on behalf of the petitioner that the impugned orders by the Additional District Development Officer are without jurisdiction and I over rule the first point.

13. As regards the second point I may observe that in Chander Singh v. The Collector Stkar 1974 RLW 270, in which Mr. P.N. Dutta and Mr. Kalla who are counsel on the opposite sides in the present case had appeared and argued the same point though in the case Mr. Dutta was interested in pressing that the total number of members of the Panchayat meant the members of the Panchayat for the time being, a stand different from the one is taking in the present case. It has however been pressed by Mr. Dutta that certain relevant case law of other High Courts had not been placed before the Court and so also certain provisions of the Rajasthan Municipalities A t, 1959 and therefore the view taken by me in that case deserves to be reconsidered.

14. After having heard Mr. Dutta at some length on this point, I have come to the conclusion that the case law of other High Courts relied upon by him cannot help him in as much as the viewtaken by me in that case turns upon the provisions of the Rajasthan Panchayat Samiti and Zila Parishads Act, 1959 which do not find place in the Acts under consideration before the other High Courts. He has also taken me through some of the provisions of the Rajasthan Municipalties Act. 1959 where the (sic) 'whole number of total number of members of the Board' occurs, but I have not felt persuaded to accept his contention. Consequently, the total number of the members of the Panchayat in the present case must be taken to be the total number of the members of the Panchayat for the timedoing i.e. 9, 3/4th majority of which comes to 7 The Additional District Development Officer has come to the conclusion that Smt. Aysha also voted for the motion. That makes the number of votes cast for the motion as 7, which would constitute 3/4th majority of 9. In this view of the matter, there is no alternative left to me but to hold that the motion was carried by the requisite majority.

15. This brings me to the last contention raised on behalf of the petitioner, viz. that the notice of motion of nonconfidence having been withdrawn the Additional District Development Officer had no jurisdiction to authorise holding of a meeting for consideration of the nonconfidence motion. Leraned Counsel for the petitioner has placed strong reliance on Gangasahai v. Deputy District Development Officer, Sawai Madhopur and Ors. ILR 1968 (18) Raj 685. It was held in that case that it was open to a member who had signed the notice of motion of nonconfidence to withdraw his name therefrom, and the Collector should have reconsidered the matter to see whether the requisite number of signatories was still there or not. The facts of that case though somewhat different yet give an indication that it is open to a signatory to a notice of motion of nonconfidence to withdraw his name before the stage is reached when the motion could b said to be before the house. In that case certain signatories to the notice of motion of nonconfidence made an application to the Collector that their signatures on such a notice had been obtained by fraud in as much as they had been asked to sign same blank papers. These applications were made before the Collector passed an order for calling the meeting for consideration of motion of nonconfidence.

16. Leraned Counsel for the nonpetitioners has distinguished Ramhetlal's case on the ground that in the present case action had been taken by the Additional District Development Officer on the notice of motion of nonconfidence in as much as notices for holding the meeting for consideration of the motion had been issued on 2-1-1973 and the meeting had been fixed for 12-1-1973. It is urged that action having been on the notice by the authority concerned prior to the making of the application by Hajikhan for withdrawal of the notice, holding of the meeting was legal and valid and the notice could not be withdrawn.

17. Leraned Counsel for both the parties have expressed their inability to cite any case directly in point. The Panchayat Act and the Rules of 1961 bearing on the subject are silent in this respect.Erskine May in his book on Parliamentary Practice (18th Edition) makes the following observation at page 361:

Withdrawal of notice- When a member has added his name to a notice of motion given by another member, he may subsequently withdraw his name; similarly the Member who first gave notice of a motion 'for an early day' is permitted to with draw the motion although other names have been added to it. Both forms of withdrawal are indicated ky a memorandum at the end of the Notices of Motions.

Again at page 336 the learned author observed:

A notice orally given holds good for the day on which it is given and cannot be withdrawn. It must be supplemented by a written notice handed in at the table during the same sitting, if it is to continue effective. A written notice becomes effective for purposes of the rule of anticipation only when it appears on the notice paper on the day following that on which it was handed in at the table and continues effective as long as it remains on the paper A notice cannot be withdrawn from the notice paper of the day or the current issue of the order book in the course of a sitting; but by an intimation to the Clerks at the Table it can be withdrawn from a future issue of the order book.

18. In my opinion the main point for decision is when does notice become effective It cannot be withdrawn after it has become effective. The matter would have been free from difficulty if there had been any statutory Provision on the subject. In the absence of any statutory provision it would be reasonable to hold that it becomes effective only when the authority charged with final action has acted upon it. I have no doubt, in my mind, that once the notice of motion of nonconfidence has been placed in the meeting called for the purpose there can be no withdrawal of the same thereafter. The Additional District Development Officer was not at all the authority charged with final action on the motion. In fact he had no say in the matter except to call a meeting for consideration of non confidence motion. In these circumstances, I have come to the conclusion that the notice of motion of nonconfidence could be withdrawn by its author before it actually came up for consideration before the meeting called for the purpose. In the present case the notice had been given by Hajikhan alone and since he withdrew it before the date fixed for the meeting, the notice did not become effective. I am, therefore, of opinion that after the notice of motion of nonconfidence had been withdrawn by Hajikhan by his application dated 9-1-1973, there was no authority left in the Additional District Development Officer or for that matter in his delegatee the Tehsildar to place it for consideration before the meeting of the Panchayat held on 12-1-1973. In this view of the matter the proceedings of the meeting held on 12-1-1973 were invalid.

19. The, net result of the foregoing discussion is that the petitioner succeeds on the last point.

20. Consequently, I allow the writ petition, set aside the impugned orders of the Additional District Development Officer dated 29-1-1973 and 3-2-1973 and quash the proceedings of meeting held on 12-1-1973. In the circumstances of the case the parties are left to bear their own costs.


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