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Bhurekhan Vs. State of Rajasthan and 14 ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 180 of 1975
Judge
Reported in1976WLN73
AppellantBhurekhan
RespondentState of Rajasthan and 14 ors.
DispositionAppeal dismissed
Cases ReferredRadhey Shyam v. Vijai Singh
Excerpt:
.....courts when petitioner his lost faith of members.;it is clear from this voting that bhure khan has lost confidence of 3/4th of the members of the panchayat. bhure khan was present in the panchayat when the motion was moved. he does not say that the presiding officer in any manner showed any bias against him therefore this technicality that the meeting was presided over by an officiating tehsildar and not by the tahsildar himself cannot invoke any sympathy in favour of bhure khan. the discussions in the above cited case clearly indicate that the agency of the court cannot be employed as an instrument to stick to a job where the petitioner or the appellant has lost his right because of his act that the members have lost faith in him and, therefore, in such circumstances this court should..........9 voted against bhure khan with a result that the acting tehsildar declared that bhure khan had lost confidence of the panchayat. the proceedings taken in the meeting of the panchayat were then challenged by bhure khan by preferring a writ petition before this court mainly on the ground that. the acting tehsildar had no authority to preside over the meeting convened on april 24, 1975 to discuss the vote of no confidence. the learned judge after considering various authorities cited before him held that the acting. tehsildar was competent to conduct the meeting specially when no bias or prejudice was imputed to the presiding officer. the learned judge did not find it proper, and just to interfere with the result of the meeting: while dismissing the petition of bhure khan, the learned.....
Judgment:

V.P. Tyagi, Ag. C.J.

1. This appeal of Bhure Khan is directed against the judgment of the learned Single Judge dated October 9, 1975 dismissing the writ petition of Bhure Khan against whom vote of no confidence was passed in a meeting presided over by the acting Tehsildar.

2. Bhure Khan was elected Sarpanch of Gram Panchayat Kayamser Dhandhoori having a total strength of 12 members only. A requisition was presented by the members of the Panchayat expressing their desire to pass a vote of no-confidence against the petitioner The Additional District Development Officer by his order dated April 7, 1975 appointed Tehsildar Jhunjhunu to preside over the meeting. It so appears that the Tehsildar on the day of meeting was on leave and, therefore, Naib Tehsildar Jhunjhunu who was acting as Tehsildar presided over the meeting. The meeting was attended by the appellant Bhure Khan also. Out of 10 members of the Panchayat who attended the meeting 9 voted against Bhure Khan with a result that the acting Tehsildar declared that Bhure Khan had lost confidence of the Panchayat. The proceedings taken in the meeting of the Panchayat were then challenged by Bhure Khan by preferring a writ petition before this Court mainly on the ground that. the acting Tehsildar had no authority to preside over the meeting convened on April 24, 1975 to discuss the vote of no confidence. The learned Judge after considering various authorities cited before him held that the acting. Tehsildar was competent to conduct the meeting specially when no bias or prejudice was imputed to the Presiding Officer. The learned Judge did not find it proper, and just to interfere with the result of the meeting: While dismissing the petition of Bhure Khan, the learned Judge observed:

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....

3. Learned Government Advocate & the counsel appearing on behalf, of the respondents raised a preliminary issue before this Court, that even if this Court comes to the conclusion that the officiating Tehsildar had no authority to preside over the meeting, the court should not interfere with the judgment of the learned single judge who has dismissed the appellant's writ petition on a consideration well founded in the democratic world and therefore, the appeal should be dismissed without going into the merits of the matter raised by the appellant. In support of this preliminary objection reliance has been place on an authority of this Court in Radhey Shyam v. Vijai Singh, District Magistrate, Ganganagar and Ors. 1972 WLN 772.

4. The facts mentioned above have not been disputed by the parties. It is also admitted by Mr. Agrawal appearing on behalf of the appellant that the objection raised by him is undoubtedly of a highly technical nature but his contention is that in democracy when the meeting is to be conducted in a prescribed manner, it should be domesticity in accordance with the procedure laid down by the law otherwise in the eye of the law the meeting-conducted in contravention of the prescribed procedure shall be deemed as if no meeting that ever taken place and, therefore, it the meeting was presided, over by an officer who was not competent under the law, it cannot be said that the intention of the members was correctly found out.

5. In Radbey Shyam's case 1972 WLN 772 the notice for convening a meeting issued by the Collector was defective as much as that it did not comply with the mandatory requirement of Section 72(3) of the Act but that defect in the notice did not in any manner effect the opinion of the members and, therefore, this Court observed that, 'it is true that when the mandatory provisions of law have been violated while despatching the notice to bold the meeting on September 18, 1971 it would go to vitiate the result of the meeting, but I cannot forget that I am entertaining the petition of the petitioner in the exercise of a jurisdiction which is entirely discretionary. The traditions of democracy require that a person who wants to hold the elected office of a local body must give due respect to the wishes of the majority of the members of that body and if he has lost the confidence of that majority then he should not try to stay in that office even for a moment and should not come forward to seek the protection of this Court under the extraordinary jurisdiction conferred by Article 226 of the Constitution. This jurisdiction is of a equitable nature and in equity if a petitioner does not come with clean bands the is not entitled to seek any remedy from the Court.

6. It was further observed in that case, 'In order to create healthy conventions for the functioning of democracy in the country, it is necessary that this Court should be slow to, hold the person in his attempt to stick to his elected office eyen after the unequivocal declaration of the majority that be has lost their confidence, the court should show its reluctance to allow such persons to invoke this extraordinary jurisdiction.

7. In the instant case out of 12 members 9 persons voted for the motion of no-confidence against Bhure Khan appellant. It is clear from this voting that Bhure Khan had lost confidence of 3/4th pf the members of the Panchayat. Bhure Khan was present in the Panchayat when the motion was moved. He does not say that the Presiding Officer in any manner showed any bias against him therefore this technicality that the meeting was presided over by an officiating Tehsildar and not by the Tehsildar himself cannot invoke any sympathy in favour of Bhure Khan. The discussion, in the above cited case clearly indicates that the agency of the court cannot be employed as an instrument to stick to a job where the petitioner or the appellant bas lost his right because of his act that the members have lost faith in him and, therefore, in such circumstances this Court should no allow itself to act as a medium for permitting unhealthy convention for the working of democratic institution. We are, therefore, inclined to hold that the preliminary objection raised by the opposite party must prevail.

8. The appeal is therefore, dismissed with costs.


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