Madhya Pradesh High Court
Ramkishan @ Ramkrishna Dhakad vs State Of M.P. And Ors. on 14 October, 1997
Equivalent citations: 1998(1)MPLJ589
ORDER T.S. Doabia, J.
1. The validity of a resolution passed by the Gram Panchayat Karhai, Tahsil Ghatigaon, District Gwalior whereby petitioner was appointed as a Panchayat Karmi and also the validity of a later resolution passed by the same Panchayat in favour of Respondent No. 5 is the subject-matter of this writ petition. This petition has arisen under the following circumstances :
A notice for calling a meeting of the Gram Panchayat was issued. This notice is Annexure P/8. Five matters were to be considered in this meeting. At Item No. 4, the subject was appointment of a Panchayat Karmi. The meeting was to be held in the Panchayat premises on 6-1-1996. It was to be held in the Panchayat premises. The further fact is that a resolution came to be passed on 6th of January, 1996. Copy of this resolution is Annexure P/9. In this meeting, the present petitioner was appointed as a Panchayat Karmi. In the resolution, there is a recital that the Sarpanch has locked the Panchayat building and therefore, the meeting is being held in the school building. For this change of venue the Upsarpanch is said to have given directions. In pursuance of this, meeting was held. All matters which were required to be gone into and which are mentioned in Agenda Annexure P/8 were considered in the meeting so held. As indicated above, there were five matters. One of them was appointment of a Panchayat Karmi. The petitioner was appointed as such. It is the further case of the petitioner that he submitted his joining report on 9th of January, 1996. Copy of this joining report is Annexure P/13. He further submits that he had taken charge of the panchayat property. This is sought to be evidenced by relying upon Annexure P/14. This is dated 9th of January, 1996.
2. The further fact is that on 23rd of February, 1996, the petitioner addressed a letter to the S.D.O. in which a grievance was made. This was to the effect that some meeting is being convened with a view to nullify the resolution Annexure P/9. The copy of this letter has been placed on the file as Annexure P/15. The further fact is that a fresh resolution came to be passed. Copy of this is Annexure P/21-A. This is dated 24th March, 1996. By this, respondent No. 5 was appointed as Panchayat Karmi. It is the passing of this resolution which led to the filing of this petition. Another factor which may be taken note of is that even though resolution Annexure P/21-A came to be passed on 24th of March, 1996, the writ petition was filed in this Court on 18th of July, 1996. The notice of admission was issued. The petition was taken up on 17th of March, 1997, 2nd and 10th of April, 1997. It was on 1st of September, 1997 the order of continuance of petitioner as Panchayat Karmi until further orders was passed. An application was filed for vacation of the order dated 1st September, 1997 with the consent of the parties, the writ petition was taken up for consideration and for final disposal.
3. The learned counsel for the petitioner has argued that a valid resolution came into existence and therefore, this could not be nullified. According to him, if this was to be nullified then the person in whose favour the resolution was passed and also the Gram Panchayat should have been afforded opportunity of hearing. Thus, the arguments raised are :-
(i) that without setting aside resolution Annexure P/9, no further resolution could be passed;
(ii) that no hearing was given either to the petitioner or to the Gram Panchayat or to the Upsarpanch before treating the resolution Annexure P/9 as inoperative so far as appointment of petitioner is concerned;
(iii) that the meeting was held in the school building because the Sarpanch had locked the panchayat building and therefore, this meeting was validly held.
4. The learned counsel for the respondent has argued that resolution Annexure P/9 is void ah initio as it was passed in a meeting which was not legally held. The meeting was not held at the place where it was supposed to be held. The Upsarpanch had no authority to change the venue. All that the members could do was to requisition a meeting in case the Sarpanch failed to convene the meeting on 6-1-1997. It is argued that if this writ petition is allowed then it would lead to resuscitation of a resolution which is patently illegal.
5. There can be no dispute with the proposition that if the resolution passed by a statutory body is to be nullified then principles of natural justice should be observed. This aspect of the matter was considered in detail in the decision reported as Hemant Kumar Shrivastava v. State of M. P., 1996 LIC 100. In the above case, it was observed that where rights of a citizen are affected on account of some action taken by the State or its functionaries, then the person who is going to be affected should be afforded an opportunity of hearing.
6. Even though the above proposition may go in favour of the petitioner, but the argument of the learned counsel for the respondent that if writ petition is allowed and a writ is issued, then it would lead to resuscitation of a resolution which in itself is invalid needs serious consideration. According to the counsel, this course should not be adopted. Thus, the question as to whether the meeting on 6-1-1996 was properly held or not is also being gone into in the present petition.
7. The conduct of business and the procedure at the meeting of the Panchayats is governed by section 44 of the M. P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the Adhiniyam). Sub-section (1) of section 44 provides that the procedure of meeting and conduct of business of a Panchayat shall be as may be prescribed. The Rules in this regard have been framed. These Rules are M. P. Panchayat (Procedure of Meeting and Conduct of Business) Rules, 1994 (hereinafter referred to as the Rules). Sub-section (4) of section 44 lays down that the basic responsibility of calling a meeting shall be of the Sarpanch and if he fails to call the meeting then the Secretary of the Gram Panchayat can issue a notice for holding a meeting. There is a further provision in sub-section (6). This provision is to the effect that if more than fifty percent of the members give requisition in writing for a special meeting of the Panchayat then the Sarpanch shall call such a meeting within seven days of receipt of such requisition. If the Sarpanch fails to call the meeting, then the Secretary of the Gram Panchayat can issue a notice of meeting.
8. So far as the Rules are concerned, Rule 3 lays down that a meeting which is to be convened in terms of section 44 would be convened by the Sarpanch. This meeting is again to be presided over by the Sarpanch.
9. In the face of the statutory provisions noticed above, it becomes apparent that the meeting has necessarily to be called by the Sarpanch. If he fails to call the monthly meeting then the Secretary of the Panchayat can call the meeting. In addition to this, 50% of the members should submit a requisition for calling the meeting of the panchayat. If such a requisition is given then the meeting has to be convened within 7 days of such notice.
10. In the present case, the agenda was issued vide Annexure P/8. When the proceedings were taken, it was mentioned that the Sarpanch had locked the Panchayat Building and therefore, the Upsarpanch directed that the meeting be held in the school premises.
11. I am of the opinion that the course adopted by the Upsarpanch is not visualised by any of the Rules. The power to call the meeting vests in the Sarpanch. If for any reason, he does not call the meeting then the Secretary of the Panchayat can call a meeting and in case none of the above eventualities happens and if members are keen to discuss the matter then they can requisition the calling a meeting. This is visualised in section 44(6) of the Adhiniyam. As indicated above, none of the eventualities existed in the present case. As such, the meeting held by the Upsarpanch cannot be said to be a meeting held in accordance with the statutory provisions.
12. All that can be assumed is that in the present case, the Sarpanch after issuing Agenda, Annexure P/8 was not keen to hold the meeting. Even if it is assumed that the Panchayat premises were locked, even then this would not give any authority to Upsarpanch to hold the meeting at another place. This is because notice regarding place of meeting is to be given to other members also. The notice is not only with regard to Agenda but also with regard to place of meeting. No such notice regarding change of place can be said to be given in the facts and circumstances of the case. As such, the conclusion is inevitable, the meeting which was held in a school building and the resolution Annexure P/9 which came to be passed was not passed in a meeting regarding of which any notice was validly given. The Upsarpanch is not authorised to issue any notice under the Adhiniyam or under the Rules. If this be the position, no writ, order or direction can be issued which would lead to resuscitation of resolution. It is so held in the case reported as Venkateswara Rao v. Govt. of Andhra Pradesh, AIR 1966 SC 828. In para 17 at page 837, following observations have been made :-
"If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case."
13. So far as the resolution Annexure P/21-A is concerned, that was passed in a meeting which was held in the Panchayat Building. As many as 14 members attended the meeting. All of them approved the appointment of respondent No. 5 as Panchayat Karmi. If this be the position then on the face of it, resolution Annexure P/21-A cannot be said to be bad. As a matter of fact, even if there is some short attendance and there is no proper notice and if majority of the members attend the meeting then the meeting cannot be declared to be a nullity. See : Narsimhiah v. Singri Gowda, AIR 1966 SC 330.
14. The other argument which has been raised by the learned counsel for the petitioner may also be examined. These arguments are :
(i) that the petitioner was member of backward class and he deserves the appointment in preference to respondent No. 5 who is not a member of any backward class.
(ii) that even on merits, the petitioner had better qualifications.
Nothing is being said on this aspect of the matter. The petitioner would be at liberty to raise this point before the appellate authority in terms of condition No. 8 of the scheme, copy whereof is Annexure P/7. A right to appeal has been given in section 91 of the Adhiniyam.
15. Apart from this under Chapter X of the Madhya Pradesh Panchayat Raj Adhiniyam of 1993 the State Government or the prescribed authority can exercise supervisory powers. It can suspend the execution of any resolution passed or order issued by a Panchayat. The only rider is that conditions contemplated in section 85(a), (b) and (c) should complied with.
16. In case, any appeal is preferred within a period of 30 days from today, then the appeal would be disposed of on merits and it would not be rejected on the ground of delay and laches. Otherwise, I do not find any justification to sustain Annexure P/9 or to quash resolution Annexure P/21-A. This petition is disposed of accordingly.