Gurbakashish Singh and Another vs The Panchayat Samiti Dharamkot and Others

Dua, J.—Gurbakhshish Singh and S. Banta Singh have approached this Court under Articles 226 and 227 of the Constitution on the following allegations. According to the petition, the Panchayat Samiti, Dharamkot has been in existence for the last about a year and a half and there are 28 members of this Samiti. Shri Balwant Singh and Shri Jagan Singh, respondents Nos. 3 and 4 were elected Chairman and Vice-Chairman respectively of this Samiti and had been working as such for nearly a year and a half after its formation. Majority of the members of this Panchayat Samiti found that the said Chairman and Vice-Chairman had lost their confidence, with the result that a notice under proviso to section 18 (1) of the Punjab Panchayat Samitis and Zila Parishads Act, 1961 (hereinafter called the Act) was issued by the Executive officer for convening a meeting of the Samiti on 25th September, 1963 at 11-15 A.M. at the office of the Samiti. This notice was dated 18th September, 1963 and mentioned the fact that the Executive Officer was issuing the same under proviso to section 18 (1). It was issued to all the members of the Samiti concerned; along with it was also sent the proposed motion signed by 18 members. In consequence of the said notice, a meeting of the Panchayat Samiti was actually convened in its office on the date and at the time mentioned in the notice for considering the motion of no confidence against respondents Nos. 3 and 4. 19 members were present at the meeting. The resolution in question was actually moved under the chairmanship of Shri Gian Chand who ruled that it had been moved unanimously. Later, some objections were raised by respondents Nos. 3 and 4 but they were also overruled. In this very meeting, petitioners Nos. 1 and 2 were also elected as Chairman and Vice-Chairman of the Block Samiti in question. On 27th September, l9o3, the Deputy Commissioner, Ferozepur, passed an order with respect to the resolution dated 25th September, 1963 relating to the no confidence motion against respondents Nos. 3 and 4 whereby the Deputy Commissioner suspended the execution of the said resolution purporting to act u/s 102 (3) of the Act. The Deputy Commissioner also moved the Punjab Government for the cancellation of the said resolution on the ground that the same had not been legally passed. It is this order of the Deputy Commissioner which has been assailed in the present proceedings. It has been described to be mala fide on the ground that Jagan Singh, Vice-Chairman of the Panchayat Samiti, respondent No. 4, stated to be the real brother of Gurcharan Singh, member of the Legislative Council is alleged to have approached the Deputy Commissioner and to have induced him to pass the impugned order without going into the real facts, and the Deputy Commissioner is said as a result thereof to have hastily suspended the execution of the resolution in question without giving any opportunity to the petitioners to explain as to how things had happened at the meeting of the Committee. It has also been averred that there was absolutely no material before the Deputy Commissioner for coming to the conclusion that the execution of the impugned resolution was likely to lead to an affray or riots among the members; it has been asserted that even at the meeting of the Samiti when respondents Nos. 3 and 4 were removed by the vote of no confidence, there was no such danger and in fact no overt incident occurred at the meeting. Actually the proceedings had ended amicably, though normally similar meetings are marked by rising passions. The Sub Divisional Officer (Civil), Zira, who was present at the spot had made no report apprehending any danger of riot or affray. The petitioners were duly elected as Chairman and Vice-Chairman and are entitled to work and discharge their duties as such; the only way to remove them is by taking appropriate proceedings by way of election petition u/s 121 (3) of the Act. The petitioners have also attached with their petition a memorandum from the Financial Commissioner Development to all Deputy Commissioners dated 13th August, 1963 in which it is stated that the election of the Chairman or Vice-Chairman cannot be called in question before any authority or Court except by the prescribed authority i. e. the Deputy Commissioner upon an election petition as provided u/s 121 (3) of the Act.

In the return signed by the Deputy Commissioner, Ferozepur, it is admitted that there are 28 members of the Panchayat Samiti, Dharam-kot, and it is mentioned that 19 out of them are primary members, 6 co-opted members 2 ex-officio members, and 1 associate member. It has also been pleaded that the resolution of no confidence can be carried out by not less than two-thirds of the total number of the members of the Panchayat Samiti and it is admitted that the ex-officio and associate members have no right to vote. It has been asserted, however, that the no confidence motion was not properly considered in the meeting in question and the same was declared to have been passed by the Chairman of the meeting even before the members could mark their attendance. The record of the proceedings, so continues the return, does not mention the number and names of the members who voted in favour of the motion and even respondents Nos. 3 and 4 are shown to have voted for the motion which could not be presumed. Rule 9 of the Punjab Panchayat Samitis (Vacation of office by Chairman and Vice-Chairman) Rules, 1963, (hereinafter called the Rules) has also not been complied with and this, according to the reply, also invalidates the proceedings. It has next been asserted that the order suspending the execution of the resolution was passed after full consideration and it was unnecessary to hear the petitioners before passing the said order; in case immediate execution of the resolution had not been stayed, there was a likelihood of an affray or even a riot amongst the members. The assertion that Shri Gurcharan Singh, M.L.C., had approached the Deputy Commissioner has been denied and in the end it has been pleaded that when respondents Nos. 3 and 4 were present, a resolution could not obviously have been passed unanimously, presumably inferring thereby, that these two persons could not have voted in favour of the vote of no confidence.

The learned counsel for the petitioners has submitted that section 102 (3) is clearly net attracted in the case in hand. It would be helpful to reproduce at this stage the relevant portion of this section under which the learned Deputy Commissioner purports to have taken the impugned action.

Power to cancel or suspend regulations of Panchayat Samitis and Zila Parishads.- (1) The Government may, by order in writing, cancel any resolution passed by a Panchayat Samiti or Zila Parishad or any Standing Committee thereof, if in their opinion, such resolution -

(a) * * * * *

(b) * * * * *

(c) on its execution is likely to cause danger to human life, health or safety or is likely to lead to a riot or affray.

(2) The Government shall, before taking action under sub-section (1) give the Panchayat Samiti or the Zila Parishad, as the case may be, an opportunity for explanation.

(3) If, in the opinion of the Deputy Commissioner, immediate action is necessary to suspend a resolution on any of the grounds referred to in clause (c) of sub-section (1), he may, by order in writing, suspend the resolution and make a report to the Government.

(4) * * * * *.

It is emphasized that a resolution of no confidence does no require any execution and this resolution has served out its entire purpose by being passed and nothing more is required to be done for carrying it out. The very act passing it constitutes also its execution.

It has also been submitted that after the election of the petitioners, the only method of assailing their election was by means of an election petition prescribed by the statute and what could not be done directly by the Deputy Commissioner could certainly not be done by him indirectly. Reference has in this connection been made to sections 121 and 122 of the Act which provide for election petitions with particular emphasis on section 122 (3) which expressly excludes other methods of calling in question the election of Chairman and Vice-Chairman. Support for the contention has also been sought from the ratio of a Bench decision of this Court in Joginder Singh v. The State of Punjab etc (1962) 64 P.L.R. 638. In that case, section 236, Punjab Municipal Act, was held not to empower the State Government to set aside an election under the guise of setting aside proceedings of a Municipal Committee.

It has next been contended that an order prejudicially affecting the petitioners has been passed without giving them any opportunity of showing cause and this, according to the submission, is violative of the elementary rule of natural justice.

In reply, the respondents'' learned counsel has relied on section 10 of the Act and submitted that the election of Chairman and Vice-Chairman has to be notified and that such notification amounts to the execution of the resolution which can in law be and has been suspended by the impugned order. The resolution of no confidence, according to. the submission, is a part and parcel of the process of election of the petitioners and, therefore, notification of their election should be considered to be the execution of the resolution of no confidence; It has further been contended that the point that the resolution of no confidence does not require any execution and is, therefore, not covered by section 102(3) is not in terms taken in the petition specifically. It is, however, conceded that being a pure question of law, it can be allowed to be raised, but it is asserted that this would require exercise of judicial discretion by the Court; it is not urged that the respondents have been taken by surprise by this argument, and indeed no serious argument has been urged as to why the Court should not in its discretion allow this argument to be raised.

The respondents'' contention that notification of the election may be considered to be execution of the resolution of no confidence is no doubt ingenious but it does not seem to me to possess much merit. The impugned order so far as relevant is in the following words:

As the resolution of no-confidence motion against the Chairman and Vice-Chairman passed by the Panchayat Samiti Dharamkot in their meeting held on 25th September 1963 is likely to lead to an affray or even riots amongst members, I suspend its execution u/s 102(3) of the Punjab Panchayat Samiti and Zila Parishads Act, 1961.

It, in clear terms, refers only to the resolution of no confidence and makes no reference to the election of the petitioners. Besides, notification of the petitioners'' election can by no stretch be construed to amount to execution of the resolution of vote of no confidence; nor can the petitioners'' election be held to be a resolution which legally could be or was in terms, suspended by the impugned order. The ratio of the decision in Joginder Singh''s case(supra) also seems to lend support to the contention that section 102(3) cannot justify setting aside of election of Chairman and Vice-Chairman under the mask of suspending the resolution of no confidence. The law having prescribed the manner in which such elections can be questioned and set aside, I am clearly of the opinion that this is the only method of challenging them and they cannot be set aside by resort to what is claimed to be an uncontrolled executive or administrative fiat. To do so would clearly be abuse and misuse and, therefore, excess of the power conferred by the section, and the resultant order would likewise be without jurisdiction and; therefore, a nullity, liable to be struck down by this Court.

Coming now to the respondents'' plea that the ground of the resolution of no confidence being incapable of execution hiving not been taken in so many words in the petition should not be allowed to be argued. I find that it is expressly averred in the petition that there was absolutely no material before the Deputy Commissioner to come to the conclusion that the execution of the said resolution was likely to lead to an affray or a riot among the members of the Samiti; it is also clearly pleaded that in the meeting of the Committee when respondents 3 and 4 were removed, there was no such danger and no overt incident occurred. The impugned order of the Deputy Commissioner has further been pleaded to be mala fide, being not genuine for the reason, among others, that there was no overt incident at the meeting. These, pleas, in my opinion, reasonably construed, necessarily include and imply that the resolution was finalized when it was passed and respondents Nos. 3 and 4 removed. All the necessary facts have been pleaded and what is developed in this. Court is only legal argument which on the facts of this case did not require to be pleaded in the writ petition in so many words. It may be recalled that the respondents'' learned counsel did not contend that he was being taken by surprise by this argument and that he wanted time for meeting the argument by a further and supplementary written statement or otherwise. This is enough to dispose of the writ petition but I may briefly also refer to the other contentions raised.

Section 102 reproduced earlier falls in Chapter VII head "Super-vision" and under this section a resolution may be cancelled by the Government when it is not legally passed or is in excess or abuse of power or its execution is likely to cause danger to human life, health or safety or is likely to cause a riot or affray. Before taking this action, the Government is enjoined by sub-section (2) to give to the Samiti etc, an opportunity for explanation. In case of emergency, sub-section (3) empowers the Deputy Commissioner to take action if danger to human lite, health or safety or riot or affray are likely. These contingencies can be described as public nuisance and disturbance of public order and it is perhaps for this reason that the power is conferred on the head of the district, the argument raised by the petitioners'' counsel is that if even the Government is enjoined as a condition precedent to the exercise of the power under sub-section (1) to give notice to the Samiti it would be unreasonable to expect the law giver to confer a wider power on a Subordinate officer and it is asserted that an obligation to hear the party to be prejudicially affected must be necessarily implied.

There is undoubtedly a lot to be said for the general proposition that even though the Legislature does not in terms provide for hearing, the serious effect of the decision of the Deputy Commissioner on the rights of the party suffering may by itself lead to the conclusion that there is a duty cast on the Deputy Commissioner to act judicially attracting the doctrine of hearing the party concerned. The silence of law or the omission in such cases is supplied by the rule of natural justice as expounded by the Supreme Court in more cases than one. The books teem with cases, both here and in countries where legal system similar to ours prevails, that absence of express requirement of hearing is not conclusive. Natural justice, a name given to certain fundamental rules necessary to the exercise of power, appear clearly now to have projected from the judicial to the administrative sphere as well where judicial approach is contemplated. In the case in hand, however, it may, with considerable cogency, be argued that the power having been conferred on the local senior officer responsible for law and order for acting speedily on account of urgency of the situation, the obligation of private hearing might well have been designedly dispensed with for passing an interim order. But then in that event a question might well pose itself was it a mere cloak or a pretext for setting aside the petitioners'' election through the backdoor of quashing the resolution expressing no confidence in respondents 3 and 4 ? This aspect again brings to the forefront the question : Did anything remain to be done for executing or carrying out the resolution in question which alone the Deputy Commissioner was empowerd to suspend ? I have already held that the resolution in question did not require, and indeed was incapable of execution; the whole purpose of it being expression of no confidence which was completely and finally achieved by passing the resolution itself. It is in the circumstances unnecessary to pursue this question any further.

Another aspect which may also seem to have some relevancy in construing the scope and effect of sub-section (3) and clause (c) of sub-s. (1) of S. 102 is, as to whether the execution of an illegal resolution alone is liable to be superseded or a perfectly lawful resolution passed in exercise of the right of the members may also be suspended merely because some one else may wrongly choose to act in a manner likely to lead to a riot or an affray. Should the Deputy Commissioner as guardian of law and order check and control the wrongdoer who designs to take the law into his own hands or is the provision intended to deprive the innocent party also of his rights apparently exercised in accordance with law and which the Deputy Commissioner is not empowered to question ? This problem has to be looked at in the background of the basic concept that democracy under Rule of law has a moral aspect which is intimately connected with justice. But this aspect ton need not be scrutinized very closely, for one reason, because the petition can be disposed of on my earlier holding and also because it has not been developed at the bar.

Before closing the judgment, I should like to point out in this case as well that if democracy under the Rule of law based on the principle of elective representation is to succeed and endure, the election-process must not be lightly and unduly interfered with by the executive administrator whose opinions and actions may unconsciously be influenced by, and indeed may in a subtle manner be subjected to, the dictates of power politics and administrative expediency. It must also be remembered that Government under the Rule of law demands proper legal limits on the exercise of power and the work of the Civil service administrator is expected to be infused with the detached instinct of justice insulated from effects of power politics, which is the true foundation of all civilized democratic systems of our pattern.

In view of the foregoing discussion, this writ petition succeeds and allowing the same I set aside and quash the impugned order of the Deputy Commissioner. The petitioners must get their costs of these proceedings.

H.R. Khanna, J.

I agree with my learned brother that the resolution in question was incapable of execution and as such the Deputy Commissioner was not competent to suspend it under sub section (3) of section 102 of the Punjab Panchayat Samitis and Zila Parishads Act. The resolutions contemplated by that sub-section are those the execution of which is likely to cause danger to human life, health or safety or are likely to cause riot or affray and not a resolution, as in the present case, about an expression of no-confidence in the Chairman and the Vice Chairman. The impugned order of the Deputy Commissioner, as ordered by my learned brother, is, accordingly, set aside with costs to the petitioner.