Chuni Lal vs State of H.P. and Others

R.S. Pathak, C.J.—The Petitioners Nos. 1 and 2, who are the Pradhan and Up-Pradhan of the Gram Panchayat Sidhpurghar in the tehsil of Nurpur in Kangra district, challenge the validity of a resolution passed in a meeting of the Gram Panchayat on December 10, 1974, expressing want of confidence in them. They also pray for the quashing of the order of the Block Development Officer rejecting the Petitioner''s representation against that resolution and requiring them to hand over charge of their respective offices.

The Petitioners are residents of the village Sidhpurghar. The Gram Panchayat in that tehsil consists of 13 members, the three Petitioners and Respondents 3 to 12. On February 10, 1973, after elections to the Panchayat had been completed, the Petitioners Nos. 1 and 2 assumed office as Pradhan and Up-Pradhan respectively. A motion of non-confidence againts them was sponsored by some of the members on August 10, 1974 and appears to have been passed by majority, eight members voting in favour of the motion: Subsequently, on objection raised by the Petitioners Nos. 1 and 2, the Sub-Divisional Officer (Civil), Nurpur, made an order dated August 26, 1974, holding that the meeting was invalid because of certain irregularities and, therefore, acting u/s 51 of the Himachal Pradesh Panchayati Raj Act she suspended the resolution and directed that it should not be executed. The irregularities which, in the opinion of the Sub-Divisional Officers, invalidated the meeting consisted in the omission to observe Rule 19-C and Rule 25 of the Himachal Pradesh Gram Panchayat Rules, 1971. Rule 19-C specifically deals with the procedure to be followed at a meeting called for considering a motion of non-confidence against the Pradhan or Up-Pradhan or both. In the event of a non-confidence motion against both, the rule requires that the Panches present should choose from amongst themselves one Panch to preside over the meeting. Rule 25 is concerned with ordinary meetings and, to my mind, is not relevant. The Sub-Divisional Officer found that no attempt was made to choose a Panch to preside over the meeting, and accordingly she made the order dated August 26, 1974. The order of the Sub-Divisional Officer was confirmed u/s 51(1) by the Director of Panchayati Raj on November 22, 1974. It appears that on enquiry made by the Sub-Divisional Officer, the Director advised that if regard be had to Section 10(3) of the Act it was open to the Panchayat to pass another resolution of non-confidence as the earlier resolution stood suspended and expunged.

It seems that thereafter eight members of the Gram Panchayat forwarded a notice to the Block Development Officer calling for a meeting of the Gram Panchayat to consider a motion of non-confidence against the Petitioners Nos. 1 and 2. On December 3, 1974 the Block Development Officer directed the Secretary of the Gram Panchayat to call a meeting of the Gram Panchayat at Sidhpurghar on December 10, 1974, for consideration of the motion and to inform all the members of the Gram Panchayat of the place, date and time of the meeting. The Petitioners say that the Petitioners Nos. 1 and 2 received a copy of the letter of the Block Development Officer on December 7, 1974, only, while the Petitioner No. 3 and the Respondents Nos. 11 and 12, who are members of the Gram Panchayat, never received that information at all. It is said that two meetings in the month are held by the Panchayat, on the 10th and 25th of the month, and the meeting held on December 10, 1974, was regarded as a routine meeting with no previous notice of the fact that a motion of non-confidence was to be considered.

Now it appears that the Gram Panchayat did meet on December 10, 1974, and it did pass a motion of non-confidence against the Petitioners Nos. 1 and 2 as Pradhan and Up-Pradhan respectively. On December 18, 1974, the Petitioners Nos. 1 and 2 were required by the Block Development Officer to hand over charge of their respective offices. Subsequently the Petitioners Nos. 1 and 2 represented to the Block Development Officer against the validity of the resolution, but without success. By his order dated December 27, 1974, the Block Development Officer informed the Petitioner No. 1 of the rejection of the representation.

And now this writ petition.

Learned Counsel for the Petitioners has raised three contentions.

The first contention is that the resolution dated December 10, 1974, was invalid because it was passed in breach of Section 10(3) of the Act. Section 10(3) provides:

The Gram Panchayat may remove the Pradhan or Up-Pradhan from his office by a majority vote at any time provided such vote of non-confidence is not sponsored within one year from the date of his or her taking oath of such office and provided further that no next vote of non-confidence shall be moved within an interval of one year of the previous non-confidence motion.

The sub-section provides for the removal of the Pradhan and Up-Pradhan from office. The removal must be by majority vote and may take place at any time subject, however, to the proviso that the first vote of non-confidence is not sponsored within a year of the assumption of office by the Pradhan or Up-Pradhan. It is apparently envisaged that the Pradhan and Up-Pradhan should be entitled to function in office for at least a year before any move is initiated for removing them by a show of non-confidence. There is a second proviso, and that requires that:

no next vote of non-confidence shall be moved within an interval of one year of the previous non-confidence motion.

We are concerned with the meaning to be given to that proviso.

It is obvious that the two provisos to Section 10(3) have been enacted for the purpose of enabling the Pradhan and Up-Pradhan to function effectively in office for a period of time before their records is questioned by a motion of non-confidence. The protection afforded against a precipitate non-confidence proceeding ensures that their functioning is not prematurely impeded or disturbed by attempts to dislodge them from office, before they have had time to consolidate their achievements and establish a reasonable success in the discharge of their responsibilities. For that reasons, the statute has provided intervals of successive periods of one year before they are called upon to face a trial of confidence in the Panchayat. The first non-confidence proceeding can be taken only after a year has expired from their assumption of office. The second non-confidence proceeding must await the expiry of a similar period from the first non-confidence proceeding. Now, a trial of confidence can be undertaken only in a duly constituted meeting in which proceedings are validly taken and votes recorded. Unless the meeting is duly constituted and the proceedings are validly conducted therein, it is not possible to say that the votes cast by the members reflect the confidence or non-confidence of the members in the Pradhan and Up-Pradhan. If a meeting in which votes are cast has no legal status, the casting of the votes is a meaningless act. Therefore, for the operation of the bar imposed by the second proviso to Section 10(3), it is necessary that the first meeting should have been duly constituted and the proceedings conducted therein should have been validly taken. Where that has been done and the motion has failed for want of a majority, no second meeting for the same purpose can be called for at least one year thereafter. Such a construction properly fulfills the purpose underlying the enactment of the two provisos. In my opinion when the second proviso speaks of a "previous non-confidence motion", it refers to a valid proceeding in which a valid motion of non-confidence has been moved and determined.

The question then is whether the non-confidence proceeding taken on August 10, 1974, was a valid proceeding. The Sub-Divisional Officer held the meeting invalid because of noncompliance with Rule 19-C which required the election of a Panch to preside over the meeting. To my mind, to constitute a valid meeting it is obligatory that it should be presided over by some one properly qualified in that behalf and duly selected therefor. Unless such a person presides over the meeting, it cannot be said that the meeting has been duly constituted. It is the duty of the presiding authority to keep order, to see that the business of the meeting is properly conducted and to ensure that the sense of the meeting is properly ascertained in regard to any question before it. Re: Indian Zoedone Co. (1884) 26 Ch. D. 70. A meeting without a proper authority presiding over it is no meeting at all, and any proceeding taken therein is invalid. I am of opinion that for that reason the non-confidence proceeding taken on August 10, 1974, was an invalid proceeding. Accordingly, it did not bring into operation the bar imposed by the second proviso to Section 10(3). The first contention of the Petitioners must, therefore, fail.

The second contention is that the proviso to Section 13(1) of the Act was not complied with inasmuch as a week''s notice was not given to the Pradhan and other Panches of the meeting called for December 10, 1974. It is not disputed by the contesting Respondents that the meeting was held without affording a week''s notice. The question is whether the proviso to Section 13(1) can be invoked in a case where a meeting is called for considering the motion of non-confidence against the Pradhan and Up-Pradhan. Section 13 provides for meetings of the Gram Panchayat. It reads:

(1) The meeting of the Gram Panchayat shall be held at least once a month at some place within the Gram Panchayat area for which it is established whenever called by the Pradhan:

Provided that the Pradhan, when required in writing by a majority of the Panches to call a meeting, shall do so within three days, failing which these Panches shall, with the previous approval of the prescribed authority, be entitled to call a meeting after giving a week''s notice to the Pradhan and the other Panches.

(2) One-third of the members of the Panchayat shall form a quorum.

(3) The decisions of the Parchayat shall be by majority and when the voting is equal, the Pradhan or in his absence, the Up-Pradhan shall have an additional or casting vote.

It seems to me that Section 13 envisages meetings for the consideration and disposal of the routine business of the Gram Panchayat. A meeting for taking a vote of non-confidence against a Pradhan or Up-Pradhan is a special meeting. It is intended for a special purpose and governed by special conditions. The distinction is evident from a comparison of Section 13 with Section 10(3). While Section 13(1) contemplates regular meetings, that is to say a meeting at least once a month, the meeting envisaged by Section 10(3) is intended to be held only when a vote of non-confidence against the Pradhan and Up-Pradhan has to be considered. Then, the proviso to Section 13(1) contemplates a requisitioned meeting. A majority of the panches are entitled to require a Pradhan to call a meeting, and in case he does not do so to call a meeting them sleeves after obtaining the previous approval of the prescribed authority and giving a week''s notice to the Pradhan and other Panches. The most significant distinction lies in the voting procedure. While Section 13(3) provides that when in the Panchayat meeting the voting is equal the Pradhan or, in his absence, the Up-Pradhan shall have an additional or casting vote, such a provision is absent in the express provision contained in Section 10(3), which provides for the removal of the Pradhan or Up-Pradhan by a simple majority vote. There is no provision in Section 10(3) entitling the Pradhan or the Up-Pradhan to an additional or casting vote. To my mind, Section 13 does not provide for a meeting for recording a vote of non-confidence against a Pradhan or Up-Pradhan. In order to provide for such a meeting, it was necessary to supplement Section 10(3) by a separate provision enabling the Gram Panchayat to carry out the object and purpose of that sub-section. With this end in view, Rule 19-C was framed. In my opinion, Section 10(3) read with Rule 19-C embodies a separate code for the purpose of considering a vote of non-confidence against a Pradhan or Up-Pradhan. Section 10(3) envisages a meeting for that purpose. No specific period of notice is prescribed for such a meeting. The period must be sufficient, however, to enable compliance with Rule 19-C, which requires the giving of notice of intention to move a vote of non-confidence, and that period has to be found in Rule 28. According to Rule 28, any member of a Panchayat who desires to bring forward a resolution at any meeting of the Panchayat must give notice of his intention to do so at the previous meeting, or atleast two days before the meeting give intimation in writing of his intention to the Pradhan or Up-Pradhan or the Secretary. In the present case, the Block Development Officer directed the Secretary of the Gram Panchayat on December 3, 1974, to convene a meeting of the Gram Panchayat on December 10, 1974, for considering the motion of non-confidence. The Petitioners Nos. 1 and 2 came to know of the meeting when they received a copy of the letter of the Block Development Officer on December 7, 1974. So far as Rule 19-C read with Rule 28 is concerned, it must be held that the notice of intention was served on the two Petitioners in accordance with Rule 28. As regards notice to the Petitioner No. 3 and Respondents Nos. 11 and 12, the case of the contesting Respondents is that they refused to accept service of notice of the meeting. That is borne out from paragraph 7 of the return filed by the Respondents Nos. 1 and 2. No. rejoinder affidavit has been filed by the Petitioner No. 3 and Respondents Nos. 11 and 12 to controvert that averment. The finding is irresistible that the Petitioners and Respondents Nos. 11 and 12 had adequate notice in law of the proposal to take a vote of non-confidence in the meeting convened for December 10, 1974. The second contention of the Petitioners has no force and is rejected.

The last contention raised by the Petitioners is that the meeting was called without the previous approval of the prescribed authority as required by the proviso to Section 13(1). It is pointed out that the prescribed authority is not the Block Development Officer but the Chairman of the Panchayat Samiti, and reference has been made to Rule 20 in that behalf. In my opinion, as Section 13 does not apply at all to the meeting contemplated by Section 10(3), no question arises in this case of a breach of the proviso to Section 13(1).

No other point has been pressed before me.

In the result, the writ petition fails and is dismissed. But in the circumstances, there is no order as to costs.