Punjab-Haryana High Court
Kavita Yadav vs State Of Haryana And Others on 21 October, 2013
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
C.W.P. No.17271 of 2013 (O&M)
Date of Decision:21.10.2013
Kavita Yadav
.....Petitioner
Vs.
State of Haryana and others
.....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present:- Mr. Puneet Bali, Senior Advocate with
Mr. Ranjit Saini, Advocate for the petitioner.
Mr. Partap Singh, Addl. AG, Haryana.
Mr. S.K. Garg Narwana, Senior Advocate
with Mr. Naveen Gupta, Advocate for
respondents No.6 to 12.
****
Rakesh Kumar Jain, J. (Oral)
The petitioner has challenged notice dated 12.7.2013 and resolution dated 29.7.2013 regarding `No Confidence Motion' passed against her removing her from the Office of the President of Zila Parishad, Gurgaon.
The Zila Parishad is constituted under Section 117 of The Haryana Panchayati Raj Act, 1994 (for short, `the Act'). Zila Parishad, Gurgaon has ten wards in which elections were held in the year 2010. As per Section 118 of the Act, every Zila Parishad is comprised of Members directly elected from Wards in a District, Chairman of all Panchayat Samitis within the district, ex-officio members, the members of the House of People, Haryana Legislative Assembly whose consistency lie within the district or Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -2- part thereof, ex-officio member and a President and Vice-President who are to be elected by and amongst the elected Members of the Zila Parishad. All ex-officio members of the Zila Parishad have right to vote in the meetings of the Zila Parishad except for election and removal of the President or the Vice-President. As per Section 121 of the Act, on the constitution of a Zila Parishad under Section 117, first meeting is called for the election of President and the Vice-President by and from amongst its elected members in the manner prescribed, by the prescribed authority. The term of office of President and Vice-President is for five years unless removed as prescribed under Section 123 of the Act by way of resolution passed by two third members of the elected members of the Zila Parishad at a meeting convened by prescribed authority in the manner prescribed.
Seven Members of the Zila Parishad moved application to respondent No.2 (The Deputy Commissioner, Gurgaon) on 1.7.2013 for convening a meeting to consider `No Confidence Motion' against the petitioner. Respondent No.2, while exercising his powers under Rule 10 of the Haryana Panchayati Raj Rules, 1995 (for short, `the Rules') issued notice to all the ten elected members for convening a meeting to consider application for `No Confidence Motion' on 29.7.2013 at 12:30 P.M in his Office.
The petitioner challenged the notice dated 12.7.2013 by way of Civil Writ Petition No.16571 of 2013 but it was withdrawn on 1.8.2013 because by that time, the `No Confidence Motion' was passed against the petitioner on 29.7.2013. Hence, in the present writ petition, the petitioner has challenged `No Confidence Motion' removing her from the post of Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -3- President of the Zila Parishad, Gurgaon.
Counsel for the petitioner has submitted that besides ten elected members, there are eight ex-officio members. Notice of the meeting has been given only to the elected members whereas Member has been defined under Section 2(xxxv) which means a member of Panchayat Samiti or Zila Parishad, as the case may be. Therefore, notice of `No Confidence Motion' meeting should have been served upon the ex-officio members as well. It is further submitted that as per Section 128, the Quorum of the special meeting in which the `No Confidence Motion' was considered is one-half of the number of members whereas the resolution has been passed by a strength of seven members out of eighteen members which should have been nine members for that purpose. He has relied upon a judgment of Hon'ble the Supreme Court in the case of Raees Ahmad v. State of U.P. and others, (2000) 1 Supreme Court Cases 432 and a judgment of Division Bench of this Court in the case of Ranjit Singh v. The State of Punjab and others, (P&H) (2) ILR 358.
Counsel for the respondents have submitted that no notice was required to be given to the ex-officio members of the Zila Parishad because they had no right to vote either in the election of the President in view of Section 121 of the Act or in the meeting considering `No Confidence Motion' against the President or Vice President in view of Section 123 of the Act. It is further submitted that quorum prescribed under Section 128(b) is relating to the conduct of business provided under Chapter XIV and is not relatable to the quorum required for passing `No Confidence Motion' which itself is given in Section 123(2) of the Act. It is also submitted that the Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -4- meeting convened under Section 127 of the Act is fixed by the President or in his absence by the Vice President who would issue notice of such meeting specifying the date, time, place and business to be transacted there which is to be dispatched to every member of the Zila Parishad which does not relate to the meeting which is to be fixed by the prescribed authority in the prescribed manner as provided in Section 123(2) of the Act. It is also submitted that the `prescribed authority' and the `prescribed manner' for the purpose of `No Confidence Motion' is provided under Rule 10 of the Rules in which the prescribed authority is the Deputy Commissioner. It is lastly argued that the definition of Member as projected by counsel for the petitioner would not apply because Section 2 starts with the words "In this Act, unless the context otherwise requires, which would mean that the definition has to be read in the context of the provision which is in question. He has relied upon decision of Hon'ble the Supreme Court in the cases of Ramesh Mehta v. Sanwal Chand Singhvi and others, AIR 2004 Supreme Court 2258, P.T. Rajan v. T.P.M. Sahir and others, JT 2003 (Suppl.2) Supreme Court 613 and has also relied upon decision in the case of Smt. Shamshad Khatun v. State of Bihar and others, AIR 2010 Patna 60.
I have heard learned counsel for the parties and perused the record. The facts are not much in dispute as there are ten elected members of the Zila Parishad, Gurgaon and the others are the ex-officio members. Seven elected members applied on 1.7.2013 to respondent No.2 for convening a meeting to consider `No Confidence Motion' against the petitioner, on the basis of which, notice dated 12.7.2013 was served and Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -5- meeting was held on 29.7.2013 in which resolution was passed by two third majority of the elected members, who were present in the meeting.
Both the learned counsel for the parties have referred to various provisions of the Act during the course of their arguments which are relevant to be mentioned here.
"2. Definitions. -- In this Act, unless the context otherwise requires,--
2(xxxv) "member" means a member of Panchayat Samiti or Zila Parishad, as the case may be;
118. Composition of Zila Parsiad. -- (1) Every Zila Parishad shall consist of
(a) the Members directly elected from the wards in a district under Section 119;
(b) the Chairman of all Panchayat Samitis within the district, ex-officio members;
(c) the members of the House of People, Haryana Legislative Assembly whose consistency lie within the district or part thereof, ex-officio member; and
(d) a President and Vice-President who shall be elected by and amongst the elected Members of the Zila Parishad.
(2) All ex-officio members of the Zila Parishad shall have right to vote in the meetings of the Zila Parishad except for election and removal of the President or the Vice-President. (3) Notwithstanding anything contained in this section, but Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -6- subject to any general or special order of the Government, where two-third or more of the total number of Members of any Zila Parishad require to be elected have been elected, the Zila Parishad shall be deemed to have been duly constituted under this Act.
121.First meeting of Zila Parishad and election of President and Vice-President.
(1) On the Constitution of a Zila Parishad under section 117, there shall be called the first meeting for the election of President and the Vice-President by and from amongst its elected members in the manner prescribed, by the prescribed authority.
(2) The meeting shall be held on such day within four weeks from the date on which the names of elected members are published by the State Election Commissioner, or any other officer authorised by him in this behalf.
123.Term of office of President and Vice-President and Motion of no-confidence against President and Vice- President.
(1) The term of the office of President and Vice-President of a Zila Parishad shall be five years unless sooner removed. (2) If by a resolution passed against the President or Vice- President, as the case may be, two-third of the total number of its elected members of the Zila Parishad decide at a meeting convened by the prescribed authority in the Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -7- manner prescribed, that the President or Vice-President, as the case may be, shall vacate the office and in such case the Zila Parishad shall elect the new President or Vice- President as the case may be, as specified in section 121 of this Act.
Provided that no such meeting shall be convened before the expiry of one year from the date on which the election of the President or the Vice-President, as the case may be, was notified, and after the expiry of such period, whenever such a meeting is convened during his term of office and the proposal for vacating the office fails, no further meeting shall at any time thereafter be convened for considering a similar proposal against the President or Vice-President unless a period of at least one year intervenes between the last failure and the date on which such further meeting is convened.
126.Meetings.-- A Zila Parishad shall ordinarily meet at least six times in each year of the transaction of its business and not more than two months shall be allowed to lapse between any two successive meetings.
127.Convening of ordinary of special meetings.-- (1) A meeting of a Zila Parishad shall be either ordinary or special.
(2) Any business may be transacted at an ordinary meeting unless required by this Act or the rules made thereunder to be transacted at a special meeting. The date of every Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -8- meeting, except the meeting referred to in sections 121 and 123 shall be fixed by the President, or, in his absence by the Vice-President. Notice of every meeting specifying the date, time and place thereof and the business to be transacted thereat shall be despatched to every member of the Zila Parishad and exhibited at the office of the Zila Parishad not less than ten days before an ordinary meeting and four days before a special meeting.
128. Quorum.-- For the transaction of business at a meeting of a Zila Parishad, the quorum shall be -
(a) if it is an ordinary meeting, one-third; and
(b) if it is special meeting, one-half, of the number of members actually serving for the time being.
Rule 10 of the Rules is reproduced as under:-
10. No confidence motion against [---] Chairman, Vice-
Chairman, President, Vice-President, {Section [---] 62 and 123}.--
(1) For purposes of [section 123] [-------] Deputy Commissioner [-------] shall be the prescribed authority. (2) The notice of meeting for consideration motion of no confidence shall be issued atleast seven days before the date fixed for the meeting, intimating the date, time and place of meeting by proclamation by beat of drum, in the Sabha (areas) concerned and by affixing a copy of same on the notice [boards of the offices of concerned Gram Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -9- Panchayats, Panchayat Samiti(s) and Zila Parishad] and at other conspicuous places in the village. [The] notice shall also be issued to all the members by registered (A.D.) Post at their ordinary place of resident and also by affixing a copy of the same at the notice board of Office of Block Development and Panchayat Officer, Additional Deputy Commissioner and Deputy Commissioner and through any other expedient manner deemed proper. (3) The presiding authority of the meeting, referred to in sub- rule(2), shall be [---] Additional Deputy Commissioner in case of Vice-Chairman and Chairman and the Deputy Commissioner in case of Vice-President and President. (4) The voting in the meeting shall be by the secret ballot for which the presiding authority shall make the necessary arrangements. The presiding authority shall also record the proceeding of the meeting setting forth therein--
(a) the names of [---] members who gave the requisition and the date thereof:
(b) the dates on which the notice was issued and served under sub-rule (2);
(c) date, time and place of the meeting;
(d) number of votes polled against the motion;
(e) number of votes polled in favour of motion; and
(f) result.
(5) If within half-an-hour after the time appointed for the Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -10- meeting, there is no quorum, the meeting shall stand dissolved and the notice shall lapse."
The first issue raised by counsel for the petitioner is that the notice required under Rule 10(2) has not been issued to all the members. According to him, the members defined under Section 2(xxxv) means the members of the Zila Parishad which is provided under Section 118 of the Act. In this regard, it would be pertinent to mention that in Section 118(2), it is provided that all ex-officio members of the Zila Parishad shall have right to vote in the meetings of the Zila Parishad except for election and removal of the President or the Vice-President. The election of the President or Vice-President is provided in Section 121 of the Act specifically laying down that after the constitution of Zila Parishad under Section 117, first meeting shall be called for the election of President or Vice-President by and from amongst the elected members. It does not allow participation of the ex-officio members at the time of the election. Similarly, at the time of removal of the President or Vice President by way of No Confidence Motion, resolution in terms of Section 123(2), requires majority of two third of the total number of elected members. Thus, there is no role of ex-officio members either in the election or in removal of the President or Vice-President of Zila Parishad and for that matter, the petitioner cannot rely solely upon the definition of members to submit that members would mean all the members. In this regard, it would be relevant to refer to the opening sentence of Section 2 of the Act which provides that `In this Act, unless the context otherwise require" which has been interpreted by the Supreme Court in the case of Ramesh Mehta (supra) in Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -11- the following manner:-
11. "The position, which, therefore, emerges is that both before and after 1994, the no-confidence motion had to be voted upon by members who were entitled to vote. As stated above, Section 3 of the Act begins with the words "unless the context otherwise requires". Section 3(36) defines the expression "whole number"/ "total number"
to mean total number of members holding the office at the given time. The said expression "whole number of members" finds place in Rule3(5), (8) and (9). Hence, we have to read Rule 3(5), (8) and (9) in the context of the provisions of the said Act. As stated above, the basis scheme of the Act prior to 1994 and post 1994 has remained unchanged. In both cases, the legislative intent has been that the office of the chairman/ vice-chairman shall stand vacated on passing of no-confidence motion by the members of the board who are entitled to vote. Hence, in our view, the expression "whole number" or "total number" connotes the "total number of elected members".
xx xx xx xx xx xx
23. One of the Constituency in question had merely 23 members out of whom two were nominated members and one was the member of the Legislative Assembly. 15 votes were cast in favour of the No Confidence Motion, Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -12- still the appellant was not found liable to be removed having regard to the definition of `total number of votes'.
24. The `whole number of votes' whether should, in our opinion, be read as total number of elected votes or total number of members as it patently appears from the definition: is the question.
25. It is accepted that the Rules have not been altered despite the fact that amendments have been carried out in the Municipalities Act in the year 1994. A,, members who were not elected members under the unamended provisions were treated as elected members. Their rights were at par with them. The very fact that the Constitution made a difference between an elected member and nominated member in the matter of election and removal of a Chairman is suggestive of the fact that now a new interpretation is called for. Nominated members are persons with special knowledge in the subject. They are nominated so that they may render their advices properly to the members of the Board which would enable it to run the municipal affairs efficiently. They remain as member of the Board irrespective of the fact that as to who is the person occupying the post or his political affinity. He is not concerned with election. He does not take part in it. A fortiori he has also not been assigned any role to play as Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -13- regard removal of the Chairman or Vice Chairman.
26. The interpretation clause in the said Act is prefaced with the expression "unless otherwise requires by the context".
27. A definition is not to be read in isolation. It must be read in the context of the phrase which would define it. It should not be vague or ambiguous. The definition of words must be given a meaningful application; where the context makes the definition given in the interpretation clause inapplicable, the same meaning cannot be assigned."
Insofar as the judgment relied upon by the petitioner in the case of Ranjit Singh's case (surpa) is concerned, it is not applicable because in that case, Section 18 of the Act was interpreted which only talks of the resolution to be passed by not less than two third of total number of the members of the Panchayat Samiti whereas in the present case, Section 123 specifically talks of two third of the elected members of the Zila Parishad. Similarly, decision in the case of Raees Ahmad's case (supra) is also not applicable because in that case also, the majority was to be seen. No Confidence Motion was to be passed by two third of the majority of the total number of members. It was thus held that it would include nominated members but here, for the sake of repetition, Section 123 specifically talks of two third of the elected members. Thus, in my considered opinion, both the judgments relied upon by counsel for the petitioner are not applicable.
The second issue raised by the petitioner is regarding quorum Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -14- as provided in Section 128 of the Act. He has tried to convey that there were 18 members of the Parishad out of which ten were elected but the quorum as per Section 128(b) in case of special meeting was one-half of the members actually serving for the time being would mean that out of 18 members, 9 members should have been there for the purpose of passing the resolution. However, I am not in agreement with this argument because Section 128 is part of Chapter XIV of the Act which deals with the conduct of business. Section 126 provides that the Zila Parishad shall ordinarily meet at least six times in a year for transacting its business and not more than two months shall be allowed to lapse between any two successive meetings. Such meetings could be either ordinary or special. Any business can be transacted at any ordinary meeting unless required by the Act or the Rules made thereunder to be transacted at a special meeting. The date of every meeting except the meeting provided under Section 121 and 123 of the Act which deals with election of the President or the Vice President of the Zila Parishad or their removal is to be fixed by the President or in his absence by the Vice President. In that meeting, for the purpose of transacting the business, notice has to be given to every member of the Zila Parishad and the quorum for the purpose of ordinary meeting has to be fixed as one third and for the special meeting as one-half. Thus, there is mark difference between the meeting convened for the purpose of election and removal of the President, Vice President and transacting the business of the Zila Parishad which is specifically extracted in Section 127 of the Act because in the meeting to be convened under Sections 121 and 123 of the Act, the word used by the legislature is of the elected members whereas in Renu 2013.10.24 17:19 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.17271 of 2013 (O&M) -15- the meeting under Section 127, the words used by the legislature is of every member. Thus, the quorum which is required for resolution to be passed in the meeting convened for considering `No Confidence Motion' is two third of the total number of elected members and not half of the members of the Zila Parishad. Hence, the second issued raised by the petitioner is also decided against him.
No other point has been raised.
In view of the aforesaid discussion, the present writ petition is found to be without any merit and the same is hereby dismissed.
October 21, 2013 ( RAKESH KUMAR JAIN )
renu JUDGE
Renu
2013.10.24 17:19
I attest to the accuracy and
integrity of this document
Chandigarh