Muni Lal vs The State of Himachal Pradesh etc.

Chet Ram Thakur, J.—u/s 61 of the Himachal Pradesh Panchayati Raj Act, 1968, (shortly called the Act of 1968) the Government is to constitute Panchayat Samitis for every block in a district. u/s 63 the Panchayat Samiti is to consist of the persons elected in the manner provided thereunder. Clause (b) (iii) of Section 63 provides for two co-opted members to be co-opted representing the Co-operative Societies within the jurisdiction of the Panchayat Samiti elected by the member of such societies for the purposes of this sub-section. u/s 74(1) the Deputy Commissioner or any gazetted officer appointed by him in this behalf after notification of election of primary members shall call a meeting of such members for purpose of co-opting members in the manner as provided under Clause (b) of Section 63 and the Deputy Commissioner or any gazetted officer appointed by him in this behalf shall preside at such meeting.

On 17th August, 1974, the Director of Panchayats issued instructions to the District Co-operative Officers and Assistant Registrars Co-operative Societies, whereby the District Co-operative officers were to ask the Executive Committee of the Co-operative Societies located within their area to elect one member out of the members of the society for co-option in Panchayat Samiti. Thereafter an election was to be held to elect one representative of the Co-operative Society. In pursuance of the above directions Respondent No. 6 who is a co-operative society, known as the Shamoth Co-operative Agricultural Service Society, Village Shamoth, elected the Petitioner as its representative on the basis of the resolution, dated 7th August, 1974, (Annexure B). After the receipt of the names of various representatives of the Co-operative Societies, Respondent No. 3, i.e. the District Co-operative and Supplies Officer, Solan, prepared a list containing the names of as many as 17 persons in respect of Kandaghat Block. Intimation of this was sent by Respondent No. 3 to the Deputy Commissioner, Solan, i.e. Respondent No. 4 on 14th August, 1974, vide Annexure C, enclosing the list of the names of the representatives of the Co-operative Societies within the Block. The name of the Petitioner figures at No. 59 in the list. Thereafter Respondent No. 4 issued an order on 20th August, 1974, appointing Shri Madan Swarup, Tehsildar Kandaghat, Respondent No. 5, as a Presiding Officer for the purpose of co-opting members as required u/s 63 of the Act of 1968. The Presiding Officer fixed the date of election of co-opted members as 31st August, 1974. On the date fixed for co-option the Petitioner went in the office of the Panchayat Samiti, Kandaghat, for purpose of election but to his great surprise he found an order displayed, purporting to be an order passed by Respondent No. 3, along with that was also displayed a list of the candidates of Kandaghat Block. In that list the name of the Petitioner was omitted and from the order it appeared that Respondent No. 3 had come to the conclusion that the Petitioner along with one Shri Gokal Chand was not eligible to be co-opted as a member of the Panchayat Samiti Kandaghat. This order had been passed in supersession of the order which had been made earlier by the above officer on 14th August, 1974. This order was passed without affording him any opportunity, nor he was told of the intention of the Respondent to delete the name from the list of candidates and he has, therefore, challenged this order as also the list whereby his name has been omitted as being illegal and non-est and passed without jurisdiction. According to him, the order is without jurisdiction and is in violation of the principles of natural justice. Respondent No. 3 could not review his earlier order nor he was competent to decide the question of eligibility of the Petitioner. Further Rule 5 of the Himachal Pradesh Panchayat Samiti (Co-option of Members) Rules, 1973 (hereinafter called the Rules of 1973) which provides that the representative of the society must be a member of the Co-operative Society is ultra vires of Section 63 (b) (iii) of the Act of 1968.

The Respondents contended that the Petitioner is a member of the Anech Co-operative Agricultural Society, Dharampur Block, and he had also obtained the membership of the Shamoth Co-operative Agricultural Service Society, which was in violation of rules 13 and 17 of the Himachal Pradesh Co-operative Societies Rules, 1971 (hereinafter called the Rules of 1971). Under Rule 11 (e) of the Rules of 1971, the Petitioner who was not the resident of village Jokha (Jodhana) could not become a member of the Shamoth Co-operative Agricultural Service Society. He was, therefore, not eligible for admission as a member of the Shamoth Co-operative Agricultural Service Society not being a resident of the area of operation of the Society for the last six months which is one of the conditions for admission as a member of the society under Rule 11(1)(e) of the Rules of 1971. Rule 13 of the Rules of 1971 prohibits the membership of two Co-operative Societies. Further, it had been averred that the Petitioner was alive to this fact and, therefore, he in connivance and collusion with the Managing Committee of Anech Co-operative Agricultural Service Society on 29th August, 1974, got a resolution inserted on its proceeding book showing his resignation from the membership of the society and that the Respondents would produce the proceeding book of Anech Cooperative Agricultural Service Society. According to the Respondents, under Rule 5 (2) (iii) of the Rules of 1973 only those persons may be proposed for co-option, who are members of the Co-operative Societies out of the panel sent by the District Co-operative Officer/Assistant Registrar Co-operative Societies in accordance with the instructions issued by the Director, Panchayati Raj in that behalf. It was further averred that the law did not enjoin upon Respondent No. 3 to afford any opportunity to the Petitioner.

In his rejoinder the Petitioner averred that he had become a member of the society (Respondent No. 6) in accordance with the Rules of 1973. He is a resident of village Jokha and owns landed property in that village. He legally and validly became the member of the Shamoth Co-operative Agricultural Service Society. He denied the fact that at the time of his admission as a member of Respondent No. 6, he was a member of the Anech Co-operative Agricultural Service Society.

The following four points arise for consideration:

(1) Whether the Petitioner was entitled to an opportunity when the order 30th August, 1974, was passed by the District Co-operative and Supplies Officer.

(2) Whether the Respondent No. 3 had no powers under the Act or rules to review the list earlier prepared.

(3) Whether the Respondent No. 3 had no jurisdiction to determine the eligibility of the Petitioner to contest the election.

(4) Whether Rule 5 of the Rules of 1973 is ultra vires of the Act of 1968.

Point No. 1:

Under the instructions as contained in Annexure ''A'' issued by the Director of Panchayati Raj, the District Co-operative Officer/Assistant Registrar Co-operative Societies was required to complete the list of members so elected by the executive committees of the Co-operative Societies in each Panchayat Samiti in the district and to send a copy of the same to the Deputy Commissioner and to the executive officers of the Panchayat Samitis in the district for circulating among the primary members of the Panchayat Samiti. Thereafter the Deputy Commissioner after receipt of such lists in respect of all Panchayat Samitis in his district is to convene a meeting of the primary members of the Panchayat Samitis u/s 74(1) read with Rule 3 (1) of the Himachal Pradesh Panchayat Samiti (Co-option of Members) Rules, 1973, for co-option of the members of the Panchayat Samiti. He is thereafter to send the same to the officer deputed u/s 74 for presiding over the meeting of the primary members of the Panchayat Samiti called for the co-option of the members u/s 63 (b) of the Act. The Managing Committee of the Shamoth Co-operative Agricultural Service Society elected unanimously Shri Muni Lal Petitioner as its representative vide Annexure ''B'' and the Respondent No. 3 thereafter prepared the list, an enclosure to Annexure ''C, and sent the same to the Deputy Commissioner on the 14th August, 1974. The name of Shri Muni Lal in the list figures at No. 59 as representative of the Shamoth Co-operative Agricultural Service Society Limited and the Deputy Commissioner by Annexure ''D'' appointed the persons mentioned therein as the Presiding Officers for the respective Panchayat Samitis and Shri Madan Swaroop, Tehsildar of Kandaghat, was appointed as the Presiding Officer to preside over the election of Kandaghat Panchayat Samiti vide its order, dated 20th August, 1974. It appears that vide Annexure ''E'', dated 30th August, 1974, the Respondent No. 3 intimated the Deputy Commissioner that he had received certain objections from some unknown quarters and after having verified the facts it was found that out of the list of 17 candidates supplied to his office, two candidates, namely, Sarvshri Gokal Chand and Muni Lal, were not eligible to be co-opted as both these candidates did not reside within the area of operation of the societies which was a clear contravention of Rule 11 (e) of the Himachal Pradesh Co-operative Societies Rules, 1971, and as such they could not become the members of the societies. He, therefore, submitted a revised list of the candidates in respect of Kandaghat Block for co-option. It is apparent that this order was passed by the Respondent on receipt of certain objections from some un-known quarters and he had not disclosed either the names of the objectors or the names of the places from where the same were received and he had verified the same in the absence of the Petitioner without any notice to him. The Petitioner had been duly elected by the Shamoth Co-operative Agricultural Society who had mentioned in their resolution that he was a member of the Shamoth Society and was eligible to be a member of the Panchayat Samiti. The Petitioner, therefore, had acquired a right for contesting the elections when he had been duly elected by the society of Shamoth. He is a member as indicated in the resolution. This is also not denied by the Respondents that he is a member of the Shamoth Co-operative Agricultural Service Society. What is contended by the Respondents is that he was a member of Anech Co-operative Agricultural Service Society also and under the rules a person could not become a member of the two Co-operative Societies simultaneously. Whatever the thing may be it is quite obvious that he was eligible to be a member of the Co-operative Society and he had been elected by the members and his name had been sponsored to Respondent No. 3 who in turn sent the same to the Deputy Commissioner. The Respondent No. 3 could not adjudicate the right of the Petitioner in his absence or without notice being issued to him. This order of the Respondent No. 3 affected the civil rights of the Petitioner and the principles of natural justice require that his name could not be removed from the list without being heard when there was a complaint received by the Respondent No. 3. Even if it was an administrative inquiry yet it was necessary to have complied with the principles of natural justice before ordering the deletion of the name of the Petitioner from the list which had been earlier submitted to the Deputy Commissioner by the Respondent No. 3. He had to decide as to how far the objections were valid and he could not condemn the Petitioner ex-parte and he had to give an opportunity to the Petitioner to show how far those objections received by him from some unknown quarters were valid and true. In this behalf reference can be made to A.K. Kraipak and Ors. v. Union of India 1969 S.L.R. 445 which says that till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Therefore, in order to prevent any miscarriage of justice it was incumbent upon the Respondent No. 3 to have given a hearing to the Petitioner before he decided to revise the earlier list and delete the name of the Petitioner. Therefore, this order cannot be sustained for having not afforded any opportunity to the Petitioner and this order, therefore, is bad and is liable to be struck down.

Point No. 2:

The Respondent No. 3 had submitted the list of the names of the representatives of the Co-operative Society sponsored by them to the Deputy Commissioner by his letter, dated 14th August, 1974, and thereafter he had no powers under the Act or under the rules to revise or review the previous list submitted by him. I have perused the rules and Act. There is no such power given either under the Act or under the rules to the District Co-operative and Supplies Officer, i.e. the Respondent No. 3. He had submitted these names as given in the list under the directions issued by the Director of Panchayats. Thereafter he was not competent to order the deletion of the name of the Petitioner and any review ordered by him is without jurisdiction and is bad. It has been observed in a Full Bench case of the Punjab High Court reported as Deep Chand and Ors. v. Addl. Director, Consolidation of Holdings, Punjab and Anr. AIR 1964 P&H 249 that:

The broad and unqualified proposition that Courts are empowered to recall or review their earlier erroneous and unjust orders whenever it is discovered that the error was due to their own mistaken view on the merits of the controversy cannot be accepted as correct. So also judicial and quasi-judicial tribunals do not possess, in this respect, any wider or more extensive inherent power than the Courts. Observations in the Full Bench decision in Jagir Singh Sobha Singh and Another Vs. Settlement Commissioner, Pepsu and Others, in this respect are too broadly worded and do not represent the correct exposition of law.

The contention that power to recall an erroneous order is distinct and different from power of review and is, therefore, inherent in every quasi-judicial tribunal, is supported neither by statute nor by any recognised principle or precedent, for, power to recall an order is only another name for the power to review it, and therefore cannot be claimed as a separate and distinct jurisdiction.

Section 151, Code of Civil Procedure, undoubtedly reserves to the Court the inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court but this power, though undefined, and rightly so, cannot be utilised for permitting a judicial or a quasi-judicial tribunal to vary and alter any order passed by it on the ground that it is later considered to be erroneous on the merits.

In these circumstances, the Respondent No. 3 who had not been clothed with any statutory authority could not review or revise that earlier order and the deletion of the name of the Petitioner from the list which had been sponsored by the Co-operative Agricultural Service Society, Shamoth, Respondent No. 6, is, therefore, wrong.

Point No. 3:

I need not go into the third point because I have already discussed under point No. 2 that the Petitioner had no authority to revise the order and, therefore, this point does not require any further discussion.

Point No. 4:

I also need not go into the constitutionality of the rules especially when it is admitted by the Respondents in para 3 that Shri Muni Lal had got himself enrolled as a member of the Shamoth Co-operative Agricultural Service Society on 15th February, 1974. It is, however, submitted by the Respondents that Rule 13 of the Himachal Pradesh Co-operative Societies Rules, 1971, prohibited the membership in two Credit Societies and that the Petitioner was not eligible to acquire the membership of the Shamoth Co-operative Agricultural Service Society. However, later on, in this para it is submitted that the Petitioner in connivance and collusion with the Managing Committee of Anech Co-operative Agricultural Service Society, on 29th May, 1974, got a resolution inserted on the proceedings book showing the resignation of Shri Muni Lal from the membership of the society and the Respondents had further submitted in that para that they will crave leave to produce the proceedings book of Anech Co-operative Agricultural Service Society containing the said false resolution. But it may be stated that the record had not, at all, been produced in the Court. Therefore, what follows is that it is admitted that the Petitioner is the member of the Shamoth Co-operative Agricultural Service Society. From the reply of the Respondents it is quite clear that he had since resigned from the membership of the Anech Co-operative Society. Thus, it is quite clear that on the date when the Petitioner was elected as the representative of the Shamoth Co-operative Society, he was a member only of the Shamoth Cooperative Society and it is submitted by the Petitioner that he owns land and also resides in village Jokha (Jodhana) which is within the area of operation of the Respondent No. 6. That being so, the Petitioner had a right to be sponsored as a representative by the Co-operative Society, Shamoth and, therefore, there is no need to go into the question whether this Rule 5 (2) is ultra vires of Section 63 of the Act of 1968. These were the only points that were argued.

The result, therefore, is that the petition succeeds and the order issued by the Respondent No. 3 on the 30th August, 1974, ordering the deletion of the name of the Petitioner is hereby quashed.