Kirpa Ram vs The State of H.P. etc.

Chet Ram Thakur, J.—This writ petition under Articles 226/227 of the Constitution of India has been filed by Kirpa Ram, who had been elected as an Up-Pradhan of Gram Panchayat Nagali in Tehsil Kandaghat of District Solan on 26th November, 1972, for quashing an order, dated 27th November, 1974, and the other orders of the same date as contained in Annexures ''F'', ''F/1'' and ''G''. Further i t had also been prayed that the Respondent No. 5, who was elected as a Pradhan of the Gram Panchayat Nagali, should be directed not to function as such.

This petition has arisen in the following circumstances:

The Petitioner, Respondent No. 5, as also nine other members were elected as Panches of the Gram Panchayat Nagali in the elections held on 30th October, 1972. Thereafter the Petitioner was elected as Up-Pradhan on 26th November, 1972, and the Respondent No. 5 was elected as Pradhan and the oath of the office of a Up-Pradhan was administered to the Petitioner on 11th March, 1974. On or before 26th or 27th September, 1974, five Panches, namely, Sarvshri Gian Singh, Budh Ram, Bir Singh, Mokhi Ram and Daulat Ram, brought it to the notice of the Petitioner that they had no confidence in Respondent No. 5, who was then functioning as Pradhan. On receipt of this notice, the Petitioner decided to convene a meeting on 8th October, 1974, and a notice was ordered to be issued to all the Panches. In the meeting held on that date the motion of no confidence against the Respondent No. 5 was passed. Thereafter, an intimation was sent to the Respondent No. 5 as also to the Executive Officer, Panchayat Samiti Kandaghat, the Director of Panchayati Raj, the Deputy Commissioner, Solan, and the Sub-Divisional Officer (Civil). The Respondent No. 5 scenting the trouble convened another meeting on 15th October, 1974 despite the fact that he had ceased to be the Pradhan and in that meeting he had got a no confidence motion passsed against the Petitioner, a copy of the proceedings of that meeting is Annexure ''E''. The authorities, however, intimated that no-confidence motion against the Respondent No. 5 passed on 8th October, 1974; was being suspended as the meeting had been held in contravention of Rules 22 and 28 of the Himachal Pradesh Panchayati Raj Rules, 1971 (hereinafter referred to as the Rules) and this intimation was received by the Petitioner on 11th December, 1974. On the same day another intimation was sent to the Petitioner that the resolution passed against him on 15th October, 1974, was in order and as such he had ceased to be an Up-Pradhan (copies of the same are Annexures ''F'' ''F/1'' and ''G''). Further the Petitioner had been directed that he shoTild hand over the charge to the Respondent No. 5. Therefore, the Petitioner challenged these orders on the grounds, that the Respondent No. 5 had ceased to be Pradhan with effect from 8th October, 1974, as a resolution of no-confidence motion had been passed by majority; that due notice of the meeting had been given to the members and that there was no violation of the Rules 22 and 28. The order of the Respondent No. 4 was violative of Section 51, Sub-section (2) of the Act. The order removing him from the office of the Up-Pradhan was illegal and without jurisdiction on the ground that no motion of no-confidence could be sponsored against the Petitioner within one year from the date of his taking oath. The action as such was violative of Sub-section (3) of Section 10 of that Act.

The Respondents Nos. 1 to 4 filed their reply through an affidavit of Shri Surendra Kishore, Deputy Commissioner, Solan, who is arrayed as Respondent No. 3. It had been stated in the reply that the petition is baseless involving highly controvercial facts and serious misstatements. The Respondents pleaded that the Petitioner was administered an oath as a Panch on 26th November, 1972, before entering upon the duties of his office as required u/s 10(1) of the Act which contemplated only one oath which was to be taken by a Panch before entering upon the duties of his office. Neither Section 10 nor any other provision contemplates any additional oath to be taken by a Panch on his election as Pradhan and Up-Pradhan. In respect of the resolution of motion of no-confidence passed against the Respondent No. 5 it had been pleaded that the resolution of vote of no-confidence passed against Respondent No. 5 and his removal from his office was also not in accordance with the Act and Rules as the procedure with regard to conduct of meeting as required u/s 13(3) of the Act read with Rules 10 (c), 21, 22, 23 and 25 to 28 of the Rules was not followed.

The Petitioner in his rejoinder averred that Section 10(3) of the Act contemplates oath both at the stage of election as a Panch as also at the stage of election as an Up-Pradhan and the second oath was required to be taken as enjoined by the law. That the holding of the meeting at the place i.e., Ghewa where the motion of no-confidence against the Respondent No. 5 was passed did not invalidate the meeting.

The contention raised that the Annexure ''F'', dated 27th November, 1974, whereby the Deputy Commissioner suspended the execution of resolution, dated 8th October, 1974, passed by the Gram Panchayat Nagali at Jadhial has not seriously been contested and, therefore, it must be presumed that the order passed by the Deputy Commissioner suspending the resolution is quite correct and in that behalf the relief sought by the Petitioner fails.

The next submission of the Petitioner is that the order (An. nexure ''F/l''), dated 27th November, 1974, holding that the resolution passed regarding the misconduct of the Petitioner expressing their no-confidence motion against him was in order and that consequently he was directed to hand over all the records and property of the panchayat to the Pradhan of Gram Panchayat Nagali as also the order (Annexure ''G'') whereby he had been removed from the office of the Up-Pradhan consequent to the passing of the resolution of no-confidence against him were bad and liable to be quashed on the ground that he had been administered oath of office of Up-Pradhan on the 11th March, 1974, whereas the motion of no confidence was moved on the 15th October, 1974, and which was against the provisions of Section 10(3) of the Act, which says that 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 of oath of such office. A similar matter came up for consideration before this Court in C. W. P. No. 251 of 1974 (Rattan Singh v. State of Himachal Pradesh and Ors.), decided on 21st November, 1974. In that case the Petitioner was elected on 27th October, 1972, to the Gram Panchayat Taksal and in that case he was administered oath of office as a Pradhan on the 19th March, 1974, although as a Panch he along with other members was administered oath on the 20th November, 1972, whereas the vote of no-confidence was tabled by the Respondents in that case on the 19th September, 1974, against the Petitioner, i.e. within one year from the date of his taking oath of his office as a Pradhan. The contention of the Petitioner was accepted that a motion of no-confidence could not be tabled whithin one year from the date of taking the oath of office as a Pradhan or Up-Pradhan. The present case is also fully covered by the decision of this case.

However, the learned Advocate-General submits that in the first place the section does not contemplate that after the election of a member to the office of a Pradhan or Up-Pradhan he is to be administered oath a second time. According to him, oath is to be administered only once when he is elected as a member because the definition of a Panch as given in Section 3(1)(s) of the Act includes a Pradhan or Up-Pradhan and, therefore, once the oath is administered as a Panch, there is no necessity to administer another oath after a person is elected as a Pradhan or Up-Pradhan. Therefore, according to him, if the oath which was administered to the Petitioner after his election as a Panch in November, 1972, then this motion of no -confidence tabled by the Respondents against him was quite valid. !But this submission of his does not appear to be correct. Section 10(3) of the Act makes it quite clear that an oath is to be administered to the Pradhan or Up-Pradhan on his assuming such office. The expression as such clearly points to the office of Pradhan or Up-Pradhan and that clearly implies that an oath is to be administered when a Panch or Up-Pradhan is elected and assumes office as such. Furthei this finds support from Rule 19D in the Himachal Pradesh Gram Panchayat (First Amendment) Rules, 1973, which reads as:

D. Administration of oath to Pradhan and Up-Pradhan.-As soon as the names of the elected Pradhan and Up-Pradhan are notified, the Deputy Commissioner or any other officer authorised by him for this purpose shall administer oath/ affirmation to the elected Pradhan and Up-Pradhan as required u/s 10(3) of the Himachal Pradesh Panchayati Raj Act, 1968. on the same form as specified in the Schedule I of the Act with the substitution that for the word "Panch" the words "Pradhan or Up-Pradhan" shall be read.

Therefore, this leaves no manner of doubt to hold that oath is to be administered to a Panch when he is elected as a Pradhan or Up-Pradhan.

The learned Advocate-General has taken a plea that this Rule 19D stands omitted by the notification No. 4-2/71 CDP (PNT), dated Simla 4, the 8 th August, 1974, published in the Rajpatra. According to this notification the Governor in exercise of the powers vested in him u/s 60 of the Himachal Pradesh Panchayati Raj Act, 1968, (Act No. 19 of 1970) effected the amendments in the Himachal Pradesh Gram Panchayat Rules, 1971. The amendment says, "Omission of Rule 19D.-Rule 19D. of the Himachal Pradesh Gram Panchayat Rules, 1971, shall be deleted." This is an amendment which came into effect on or after the 8th August, 1974, therefore, it will not in any way alter the position that the oath which was administered on the 11th March, 1974, was also not necessary. The rule will have prospective effect and not retrospective effect unless specially so stated. Therefore, in my opinion, the resolution about the vote of no-confidence moved against the Petitioner within one year from the date of administration of oath to the Petitioner as a Up-Pradhan is quite invalid as it is against the provisions of the Act. No matter that the Rule 19D. which provided for the oath to be administered to the Pradhan or Up-Pradhan as soon as they were elected as such in the form as specified in Schedule I of the Act has been |omitted.

Though the rules have been amended but the section has not been amended. Rules are to be framed under the Act and they derive their authority from the Act. When the main section in the Act provides for oath then the deletion of the rule will not in any way nullify or render ineffective the provisions of the Act in that behalf. Rules are subordinate legislation and they cannot over ride the provisions of the Act unless the provision of the Act itself is amended so as to omit the words which make it necessary to administer oath to a Panch when he is elected as a Up-Pradhan or Pradhan and assumes office as such.

Learned Advocate-General has cited a number of authorities on the question of interpretation of statutes and he submits that the Court must always interpret the statute so as to harmonise and reconcile the provisions of the Act and the rules. It will not be necessary to refer to those authorities because in the present case, in my opinon, there is no question of harmonising or reconciling the two provisions. It was necessary to have amended the section itself and the deletion of the rule will not have the effect of amending the section. If it was the intention not to administer any oath to a Panch when he was elected as a Pradhan or Up-Pradhan then it was not necessary to have used these words "from his office ... provided such vote of no-confidence is not sponsored within one year from the date of his or her taking of oath of such office." Therefore, in my opinion, the submission made by the learned Advocate-General is not at all correct that no second oath was necessary or it was a surplusage.

In view of this, the resolution having been moved within one year from the date of the administration of oath to the Petitioner, the orders (Annexures ''F/1'' and ''G'') are bad and unsustainable.

Therefore, the writ petition is accepted and the orders (Annexures ''F/1'' and ''G'') are quashed. Parties are left to bear their own costs.