Himachal Pradesh High Court
Ramesh Kumar vs State Of H.P. & Others on 13 August, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.903 of 2018 Reserved on : July 16, 2018 .
Date of Decision : August 13, 2018
Ramesh Kumar ...Petitioner.
Versus
State of H.P. & others ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting? Yes.
For the Petitioner : Mr. Shrawan Dogra, Senior Advocate, with Ms Nishi Goel, Advocate.
For the Respondents : Mr. Ashok Sharma, Advocate General, with Mr. Ranjan Sharma, Ms Rita Goswami & Mr. Nand Lal, Additional Advocates General.
Sanjay Karol, Acting Chief Justice By means of the present Writ Petition, we are called upon to answer the following questions:
(a) As to whether motion of no-confidence, as envisaged under Section 129 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act) must precede, by way of an Ordinary or a Special Meeting envisaged under Section 80 of the Act?::: Downloaded on - 13/08/2018 23:02:54 :::HCHP
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(b) As to whether quorum in a meeting, considering resolution of a motion for no-
confidence against Chairman/Vice Chairman of the Samiti, is to be the one prescribed under Section 80 or 129 of the Act?
.
(c) As to whether resolution, recording the intent of the Members to move a motion of no-confidence, or notice of intention to move a resolution, requiring the Chairman/ Vice Chairman to vacate their offices, as envisaged in Form-32, so prescribed under Rule 128 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 (hereinafter referred to as the Rules), is necessarily required to be supplied to the person against whom such resolution is sought to be moved or is it only Form-33 r which is required to be supplied?
(d) As to whether Rule 134 of the Rules mandates the Presiding Authority to necessarily record that absolute secrecy was maintained whilst the Members casted their vote, in favour or against the motion?
2. Short facts, leading to the filing of the present petition being that Shri Ramesh Kumar (petitioner herein), who was officiating as Chairman of the Panchayat Samiti, Nankhari, Development Block, Nankhari, District Shimla, Himachal Pradesh, received a notice, dated 3.4.2018 (Annexure P-1) (Page-13), in Form-33, intimating that a motion of no-confidence stands initiated against him, for which a meeting is convened and scheduled to be held on 17.4.2018 at 11 a.m. The said notice, according to the petitioner, ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...3...
accompanied a proposed resolution dated 29.3.2018 (Annexure P-2) (Page-15), purportedly signed by ten Members, namely Shri Surjit Singh Thakur, Ms Reeta .
Joshi, Ms Asha Devi, Ms Dev Kanya, Shri Inder Dass, Shri Govinda, Ms Sheela Devi, Ms Manjeeta, Shri Rajesh Kumar and Ms Nisha Chauhan. This motion was proposed, both against petitioner Shri Ramesh Kumar, the officiating Chairman and Smt. Lata Shyam, the officiating Vice Chairman of the Panchayat Samiti.
3. From the pleadings of the petitioner and the material placed on record, it cannot be inferred that objection against the no-confidence motion was ever raised by the petitioner. However, from the submissions made in Para-8 of the petition and Annexure P-3, referred to therein, it is evident that the Vice Chairman, who is not a party before us, raised objection with regard to non-
compliance of provisions of Section 85 of the Act and Rule 128 of the Rules, including non-furnishing of the resolution in Form-32.
4. Petitioner does not state as to what transpired thereafter, save and except that the meeting, as originally scheduled, took place on 17.4.2018, with the ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...4...
no-confidence motion against the Chairman and Vice Chairman put to vote and successfully passed.
5. It is not in dispute that Panchayat Samiti, .
Nankhari, comprises of 15 Members, out of whom 8 elected Members, casted their vote in favour of the resolution. At that time, only S/Shri Rajesh Kumar, Surjeet Thakur, Govind Singh, Ms Rita Joshi, Ms Nisha Devi, Ms Sheela Devi, S/Shri Dev Kanya and Inder Dass, from amongst the persons mentioned in Para-2 (supra) were present. It is also a matter of record that petitioner did not participate in the said meeting. Also, in the said meeting, no objection on his behalf, either by himself or through anyone else, was ever raised, with regard to non-
compliance of the provisions of the Act/Rules.
6. On 21.4.2018, petitioner filed the instant petition, inter alia, praying for the following reliefs:
"i) That the proceedings of respondent No.3 dated 17.4.2018 under the Chairmanship of Respondent No.2 (Annexure P-5 with English translation as Annexure P-5/T) may be quashed and set aside;
ii) That the notice of motion (Annexure P-2 along with its English Translation as P-2/T) may be quashed and set aside;
iii) that the petitioner may be declared to continue as Chairman of Respondent No.3."::: Downloaded on - 13/08/2018 23:02:54 :::HCHP
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7. Annexure P-5 (Page-22) is the resolution dated 17.4.2018, whereby resolution of removal of the Chairman and Vice Chairman stands passed and .
Annexure P-2 (Page-15) is the proceedings of meeting dated 29.3.2018 that of Panchayat Samiti, proposing no-
confidence motion against the Chairman and the Vice Chairman.
8. On 23.4.2018, this Court by way of an interim order directed that fresh elections for the posts of Chairman and Vice Chairman of the Panchayat Samiti be held as per schedule, i.e. 24.4.2018, but the result be not declared and kept in a sealed cover. Consequently, the process of election is over, with the result yet not declared.
9. With vehemence, the State while opposing the petition, by filing its response, justified the action taken only after complying with the provisions of the Act and the Rules.
10. Petitioner filed rejoinder, enclosing an affidavit of Ms Sheela Devi (referred to in Para-2), Member of the Panchayat Samiti, Nankhari, one of the signatories to the resolution for non-confidence motion (Annexure P-2) and ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...6...
the resolution of removal (Annexure P-5). Contents of the affidavit read as under:
"I, Sheela Devi wife of Late Shri Shanker .
Dass, aged 60 years, occupation agriculture, resident of Vilalge Tutoo, P.O. Delath, Gram Panchayat, Delath, Tehsil Nankhari, District Shimla, H.P. do hereby state and declare on solemn affirmation that I have been elected as member of Panchayat Samiti, Nankhari and is working as such since 2016. I have not signed any document on 03.04.2018 and my signatures on simple paper were obtained by Panchayat Samiti member from Thaili Chakti and Shakla Barog at my residence. My signatures on Form-32 were obtained on 17.04.2018 at Nankhari along with other seven members. I have not signed Form-32 prior to 17.04.2018.
I, the above named deponent do hereby solemnly affirm that this affidavit is true, no part of this is false and nothing material has been concealed there from."
11. Necessity for filing the aforesaid affidavit arose, perhaps for the reason that the State, in its response, placed on record notice of intent to move a resolution, in terms of Form-32, so stipulated under Rule
128.
12. Pursuant to our order dated 29.5.2018, record of the District Panchayat Officer, District Shimla, Himachal Pradesh, including the Diary Register from 5.1.2018 onwards, was made available to the Court for its perusal. We also heard learned counsel for the parties.
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13. From the Diary Register, we notice that notice, as envisaged under Rule 128 of the Rules (Form-32), stands duly entered on 3.4.2018 at its place, i.e. Serial .
No.1353. We further notice that before and after the said entry, there have been several entries, and to us, it does not appear to be a case of interpolation.
14. We notice that original of the proceedings dated 29.3.2018 is also on record, so also notice of intent in Form-32.
15. Having set out the facts, we now proceed to examine the statutory provisions.
16. Bare perusal of provisions of the Act reveals that it is divided into XIV Chapters. We are primarily concerned with two Chapters, i.e. Chapter-V (Sections 77 to 87), which deals with "Panchayat Samiti" and Chapter VIII (Sections 119 to 132), which deals with "General Provisions Relating to Incorporation, Duration, Territorial Constituencies of Panchayats and Qualification etc. of Officer Bearers".
17. Section 77 postulates that for each Block there shall be a Panchayat Samiti, having jurisdiction over the Block. Now "block" stands defined under sub-section (3) ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...8...
of Section 2 of the Act, to mean, such area in a District which may be declared by the Government by way of a notification, and "Panchayat Samiti" is defined under sub-
.
section (28) of Section 2, so as to mean, a Samiti constituted under Section 79 of the Act, having jurisdiction over the block area.
18. Section 78 of the Act provides for constitution of the Panchayat Samiti and Section 79 provides for the mode of election of the Chairman and Vice Chairman.
19. Since gravamen of the petitioner is based on non-compliance of the provisions of Section 80 (Chapter-
V), we deem it appropriate to reproduce the same as under:
"80. Meetings.- (1) A meeting of a Panchayat Samiti shall be either ordinary or special and, except as otherwise provided under this Act, the meetings of the Panchayat Samiti shall be convened by the Chairman and in his absence by the Vice-Chairman.
(2) A Panchayat Samiti shall ordinarily meet at its headquarters atleast four times in each year for the transaction of its business and not more than three months shall be allowed to elapse between any two successive meetings.
(3) Notice of every meeting specifying the time and date thereof and the business to be transacted there at shall be sent to every member of the Panchayat Samiti and exhibited at the office of the Panchayat Samiti not less than ten clear days before an ordinary meeting and seven clear day before special meeting:::: Downloaded on - 13/08/2018 23:02:54 :::HCHP
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Provided that wherever it is considered expedient to do so in the public interest the requirement of the time limits specified in this sub-section may be relaxed with the approval of .
the prescribed authority.
(4) The Chairman, or in his absence the Vice-
Chairman, may whenever he thinks fit, and shall, on requisition made in writing by not less than one-third of the total members of the Panchayat Samiti or if required by the Zila Parishad or the Deputy Commissioner, convene a special meeting within two weeks of the receipt of the written requisition.
(5) Any meeting of a Panchayat Samiti may, with the consent of the majority of the members present, be adjourned to any other date; but no business other than that left over at the adjourned meeting shall be transacted at the next following meeting: 1 [Provided that additional agenda may be included for the adjourned meeting if the same is notified on the day of adjournment of the meeting or at least one week before the date fixed for the adjourned meeting: Provided further that when a special meeting is adjourned for want of quorum, fresh adjourned special meeting shall be convened by giving fifteen days notice to the members within one month from the date of adjournment of special meeting.] (6) At every meeting of a Panchayat Samiti, the Chairman if present, or in his absence the Vice- Chairman, and if there be no Chairman or ViceChairman present, then such one of its members, as the members may elect, shall preside.
(7) Except as otherwise provided by this Act or the rules made thereunder all questions coming up before any meeting of a Panchayat Samiti shall be decided by a majority of votes of the members present and voting and, in case of an equality of votes, the authority presiding at the meeting shall have a second or casting vote.
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(8) Any matter finally disposed of by a Panchayat Samiti shall not be reconsidered unless the recorded consent of not less than two-thirds of its total members has been obtained there to or unless the Zila Parishad, or the Director has .
directed its reconsideration.
(9) Subject to the provisions of this Act and the rules framed thereunder, for the transaction of business at a meeting of a Panchayat Samiti, the quorum shall be:-
(a) if it is an ordinary meeting one-half of its members having right to vote; and
(b) if it is a special meeting, two-thirds of its members having right to vote."
(Emphasis supplied) Remaining provisions of the said Chapter deal with the functions to be discharged by the Panchayat Samiti.
20. Coming to Chapter-VIII of the Act. We notice that Section 120 provides for the duration of Panchayats, which shall be for a period of five years. Provision for moving a no-confidence motion and how it is dealt with, is stipulated under Section 129 of the Act, which we reproduce as under:
"129. No confidence motion.-
(1) ..........
(2) Where a notice of intention to move a resolution requiring the Chairman or Vice-
Chairman of the Panchayat Samiti or Zila Parishad to vacate his office, signed by not less than majority of its total elected members is given and if a motion of no confidence is carried by a resolution passed by a majority of elected members present and voting at its general or ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...11...
special meeting, the quorum of which is not less than one-half of its total elected members, the Chairman or the Vice-Chairman against whom such resolution is passed shall cease to hold office forthwith.
.
(3) Notwithstanding anything contained in this Act or the rules made thereunder, a Pradhan or Up- Pradhan of Gram Panchayat or a Chairman or Vice-Chairman of the Panchayati Samiti or Zila Parishad shall not preside over a meeting in which motion of no-confidence is discussed against him. Such meeting shall be presided over by such a person, and convened in such manner, as may be prescribed and the person against whom a motion of no confidence is moved, shall have a right to vote and to take part in the proceedings of such a meeting.
(4) ....................."
21. Quite apparently, there has to be (i) a notice of intent, (ii) to move a resolution, requiring the Chairman/Vice Chairman to vacate office, (iii) the said notice be signed by not less than majority of total elected members, (iv) such resolution, if put to vote in a general or special meeting, must be passed by majority of elected members present and voting, and (v) in any case the quorum of such meeting should not be less than one half of total elected members.
22. When we look at Section 80, we notice envisages convening of a meeting by the Chairman and in his absence by the Vice Chairman. Such meeting can be either ordinary or special in nature. What is an ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...12...
'ordinary meeting' or a 'special meeting', is not defined in the Act or the Rules. However, from sub-section (2) of Section 80, it can be inferred that the Panchayat Samiti .
has to meet four times in a year, with a gap of not more than three months between two successive meetings.
These meetings would constitute ordinary meetings. A meeting convened on the asking of two thirds of the members having right to vote would be termed as a 'special meeting'. Sub-sections (2) & (3) provide the manner in which notice of such meeting is to be given and the place of such meeting. Special meeting can be convened by the Chairman under certain circumstances, as envisaged under sub-section (4). Quorum for transacting business of the meeting of the Panchayat Samiti is envisaged under sub-section (9) of Section 80.
For ordinary meeting, the quorum must be one half of the members having right to vote, and for a special meeting, it must be two thirds of members having right to vote.
23. Section 80, or for that matter Chapter-V, does not, at all, deal with the factum of removal of the Chairman or Vice Chairman of the Panchayat Samiti, so elected by virtue of Section 79 of the Act. In fact, this ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...13...
Chapter also does not deal with any of the disqualifications, which an office bearer, i.e. Chairman or Vice Chairman of the Samiti may entail. The Chapter .
purely deals with the formation, constitution and functioning of Panchayat Samiti.
24. One notices that the quorum for special meeting, as envisaged under sub-section (9) of Section 80 is two thirds of its members having right to vote, whereas, the quorum prescribed under sub-section (2) of Section 129 of the Act, in a case of resolution to be passed, is not less than one half of its total elected members. On first brush, there appears to a contradiction qua the quorum. However, careful reading of the Sections leads to the only irresistible conclusion of there being none. The provisions are clear on this aspect.
Sub-section (9) of Section 80, providing the quorum for a special meeting to be two thirds, starts with what is commonly perceived and termed as a non abstante clause and that being "subject to the provisions of this Act and the Rules framed thereunder". In view of the same, when it comes to the transaction of business, be it by way of an ordinary or a special meeting, the quorum ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...14...
to be considered is the one prescribed under sub-section (2) of Section 129 of the Act and not as is so provided under sub-section (9) of Section 80.
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25. Further, let us examine as to what is it that is "subject to the provisions of the Act", and this we find to be in sub-section (2) of Section 129 of Chapter-VIII. Sub-
section (2) , we repeat, requires, (a) there should be a notice of intention, (b) to move a resolution requiring the Chairman/Vice Chairman of the Panchayat Samiti to vacate the office, (c) such notice should be signed by not less than majority of the total elected members, (d) if such motion of no-confidence is carried out by a resolution passed by a majority of elected members, present and voting, at its general of special meeting, (e) quorum of which is not less than one half of its total elected members, (f) the Chairman and Vice Chairman against whom such resolution is passed shall cease to hold that office forthwith.
26. Significantly, Section 129 of the Act comprehensively deals with the passing of no-confidence motion against (a) Pradhan/Up-Pradhan of Gram Sabha {sub-section (1)}, (b) Chairman/Vice-Chairman of the ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...15...
Panchayat Samiti or Zila Parishad {sub-section (2)}. By virtue of sub-section (3) of the said Section, Pradhan or Up-Pradhan of the Gram Panchayat; Chairman or Vice-
.
Chairman of the Panchayat Samiti or Zila Parishad, are not entitled to preside over the meeting, in which motion of no-confidence is discussed against them. Such meeting is to be presided over by another person. But, however, the person against whom such motion is moved has a right to vote and take part in the proceedings. It prescribes its own quorum. This Section is indep3endent, exclusive and self serving.
27. Quorum for convening a meeting of Gram Sabha is specifically provided under Section 5 of the Act;
quorum for convening meeting of the Gram Panchayat is provided under Section 9; quorum for convening meeting of the Panchayat Samiti is provided under Section 80;
and the quorum for convening meeting of the Zila Parishad is provided under Section 91 of the Act.
28. Significantly, these sections provide for a quorum for transacting business in an ordinary or general meeting. However, when it comes to transacting the business of passing a resolution of no-confidence motion, ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...16...
the quorum is specifically provided for in a special section subsequently placed in the statute, which is Section 129, and it is for this reason, insofar as the decision of the .
instant case is concerned, we take note of the opening words of sub-section (9) of Section 80, which read "subject to the provisions of this Act".
29. The view we take is fortified by law. The principles of interpretation of a statute are now well settled. A statute is an edit of the Legislature {Vishnu Pratap Sugar Works (Private) Ltd. v. Chief Inspector of Stamp, U.P., AIR 1968 SC 102 (Three Judges)}, and the conventional way of interpreting or construing a statute is to seek the 'intention' of its maker {RMD Chamarbaugwala v. Union of India, AIR 1957 SC 628 (Five Judges)}.
30. The Court has to look essentially to the words of the statute to discern the 'referent' aiding their effort as much as possible to the context.
31. The legal maxim mens or sententia legis {Abhiram Singh v. C.D. Commachen (Dead) by Legal Representatives & others, (2017) 2 SCC 629 (Seven Judges)}, and Generalia specialia non derogant {General ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...17...
Things do not derogate from special things, OSBORNS Law Dictionary}, are well settled.
32. It is also settled principle of law that the .
statute must be read as a whole and one provision of the Act should be construed with respect to the other provisions in the same Act, so as to make a consistent enactment of the whole statute. This, in fact, is the elementary rule of interpretation. {AG v. HRH Prince Ernest Augustus, (1957) 1 All ER 49; Philips India Ltd. v.
Labour Court, (1985) 3 SCC 103 (Two Judges)}.
33. Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter. {M. Pantiah and others v.
Muddala Veeramallappa and others, AIR 1961 SC 1107 (Five Judges)}. The principle for such construction is ex visceribus actus {Newspapers Ltd. v. State Industrial Tribunal, U.P. & others, AIR 1957 SC 532 (Three Judges)}.
34. It is also a settled principle of law that the same word may mean one thing in one context and another in a different context. For this reason the same ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...18...
word used in different sections of a statute or even when used at different places in the same clause or section, may bear separate meanings. {D.N. Banerji v. P.R. .
Mukherjee, AIR 1953 SC 58 (Five Judges); Ramnarayan Mor v. State of Maharashtra, AIR 1964 SC 949 (Five Judges); and Anand Nivas (P) Ltd. v. Anandji Kalyanji, AIR 1965 SC 414 (Three Judges)}.
35. It is also settled principle of law that the phrase "notwithstanding anything contained in" is used in contradistinction to phrase "subject to", the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject. {Kerala State Electricity Board v. The Indian Aluminium Co. Ltd., (1976) 1 SCC 466 (Five Judges);
Punjab Sikh Ragular Motor Service, Moudhapara v.
Regional Transport Authority, Raipur and another, AIR 1966 SC 1318 (Four Judges); and Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447 (Two Judges)}.
36. In fact, the Apex Court in South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum and another, AIR 1964 SC 207 (Four Judges), ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...19...
categorically interpreted the words "subject to the other provisions of the Constitution" to mean that in the event of a conflict between the pre-existing law and the .
subsequent law, which in the case considered by the Apex Court was the Constitution, the latter would prevail.
37. To somewhat similar effect is the ratio of law laid down in Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828 (Three Judges).
38. It is not in dispute that notice of intention, be it Annexure P-2 or Annexure R-1, was moved, expressing the intent to remove the Chairman and Vice Chairman of the Panchayat Samiti and that it was signed by the majority of the elected members, which in the instant case was 10, out of 15. It is also not in dispute that such motion was carried by a resolution passed by the majority of the elected members, who were present and voting, which in the instant case were 8, out of 15. It is also not in dispute that those members, who were present and had voted, were the elected members, and as such constituted (a) majority of the elected members,
(b) comprised quorum which is not less than one half of the total elected members.
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39. As already observed, Chapter-V deals with transaction of business by the Panchayat Samiti, other than the business of non-confidence motion. Sub-section .
(9) of Section 80 talks of members "having right to vote".
It does not talk of the resolution by "majority of the elected members present and voting". The language of sub-section (2) of Section 129 is different and distinct, dealing with two different situations. 'Resolution for removing the office bearer' can also be said to be transaction of business of the Panchayat Samiti, but then for removal of an office bearer, the Legislators, in their wisdom, inserted Section 129. Thus, we do not find any conflict in the said two statutory provisions.
40. Thus far, we find that there is no infringement of any of the provisions of the Act. However, what further needs to be examined is as to whether there is any violation of the Rules or not.
41. It is in this backdrop, we now proceed to examine as to what really the Rules postulate.
42. Much emphasis is laid on non-compliance of Rules 128, 129, 133 and 134 of the Rules, which we reproduce as under:
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"128. No-confidence motion against Chairman and Vice-Chairman of Panchayat Samiti and Zila Parishad(section 129(2).- A notice of intention to move a resolution requiring the Chairman or Vice- Chairman or both of Panchayat Samiti or Zila .
Parishad as the case may be, to vacate offices shall be given in Form-32. Such notice shall be signed by not less than majority of its total elected members having right to vote of the Panchayat Samiti or Zila Parishad, as the case may be, and shall be addressed to:-
(a) The Chairman, if the resolution is to be moved against the Vice Chairman;
(b) the Vice-Chairman, if the resolution is to be moved against the Chairman; and
(c) the District Panchayat Officer, if the resolution is to be moved against both r the Chairman and the Vice-Chairman of a Panchayat Samiti and to the Deputy Commissioner in case of both the Chairman and the Vice-Chairman of the Zila Parishad.
129. Meeting to be convened within 15 days.- On receipt of notice under rule 128, the Chairman, Vice-Chairman, the District Panchayat Officer or the Deputy Commissioner, as the case may be, to whom the notice has been addressed, shall convene a meeting within a period of fifteen days from the date of receipt of the notice."
"133. Matters to be included in the proceedings.- The Chairman or Vice-Chairman or the District Panchayat Officer or the Deputy Commissioner, to whom the notice of intention to move a resolution, requiring the Chairman or Vice-Chairman both of Panchayat Samiti or Zila Parishad to vacate office, was addressed under rule 128 shall preside over meeting and shall draw up proceedings of the meeting, in the proceeding register maintained by the Panchayat Samiti or Zila Parishad, as the case may be setting-forth therein:-
(a) the names of the members present ;::: Downloaded on - 13/08/2018 23:02:54 :::HCHP
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(b) the names of the members giving notice;
(c) date on which the notice of intention for bringing no confidence motion was given under rule 128;
.
(d) the date fixed for the meeting and the date on which the notice of the meeting was sent under rule 131;
(e) total number of elected members of Panchayat Samiti or Zila Parishad ;
(f) the Chairman or Vice-Chairman were present ;
(g) the time at which the meeting commenced and the time at which the meeting was dissolved for want of quorum, if the meeting is so dissolved;
(h) the motion in extenso ;
(i) the time at which the motion was put to vote ;
(j) number of the members having right to vote and who voted for the motion or their names;
(k) number of members having right to vote and who voted against the motion or their names; and
(l) the result of voting whether the motion was defeated or succeeded.
134. Voting.- (1) Presiding authority shall arrange for the voting and ensure that secrecy of the member casting his vote for or against the motion shall be maintained at all levels.
(2) The presiding authority shall not speak on the merits and demerits of the motion nor shall he be entitled to vote thereon while discussing the motion.
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(3) The person against whom the no-
confidence motion has been brought, shall be allowed to place his defence and explanation before the Panchayat Samiti or Zila Parishad, as the case may be, if he so desires.
.
(4) Presiding authority shall declare the result of the voting. The motion shall be deemed to have been carried when it has been passed by a majority of members present and voting.
(5) Where the motion has been carried, the office bearer concerned, shall stand removed from his office with immediate effect and the District Panchayat Officer or the Deputy Commissioner as the case may be, shall cause the notice to this effect to be fixed at the office of Panchayat Samiti or Zila Parishad, as the case may be, and serve a copy of the same on the removed Chairman or Vice-Chairman of Panchayat Samiti or Zila Parishad, as the case may be. If the Chairman is removed in that event Vice-Chairman shall function as Chairman till the election of new Chairman. After the removal of the Chairman or Vice-Chairman or both of Panchayat Samiti or Zila Parishad, as the case may be, the Deputy Commissioner shall convene a special meeting of Panchayat Samiti or Zila Parishad, as the case may be, within a week of passing of no confidence motion to elect the Chairman or Vice-Chairman or both, as the case may be, as per procedure laid down in Chapter IX and X of the HP Panchayati Raj(Election) Rules, 1994."
43. Bare perusal of Rule 128 indicates that notice of intent to move resolution, for removal of both the Chairman and the Vice Chairman, is required to be given in Form-32 to the District Panchayat Officer.
44. We notice from the record that such notice, in Form-32, signed by ten members, was in fact addressed to the District Panchayat Officer. As already observed, ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...24...
the same was received against Diary No.1353 on 3.4.2018 in the office of the said Officer. We also notice that prior thereto, on 29.3.2018, these very members .
(ten in number) had expressed their intent that a no-
confidence motion be moved, for which, request for convening a special meeting of the Samiti was made. It is this document, which is perceived by the petitioner to be a notice envisaged under sub-section (2) of Section 129, whereas it is actually not so.
45. At this stage, we notice that Rule 131 provides that notice in Form-33 is required to be served on the members of the Panchayat Samiti, service of which alongwith the intent of ten members, so recorded vide document dated 29.3.2018 (Annexure P-2), was effected on the office bearers, including the petitioner.
46. Only Form-33, and not Form-32, is required to be supplied, which was so done.
47. In this view of the matter, we are of the considered view that there is no infringement of any of the Rules from 128 to 131 of the same.
48. Rule 133 only stipulates as to how the proceedings, pursuant to the resolution for removal, are ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...25...
to be drawn. At least 12 conditions are to be recorded therein. From the copy of proceedings (Ex.P-5), we find all such conditions to have been duly recorded and thus .
there is no infraction thereof.
49. In this petition, it is not averred that the Presiding Authority did not maintain secrecy at the time of casting of vote. Nor has anyone of the members, who were present in the said meeting ever raise any objection with regard thereto. Voting has not been by raise of hand. Rule 134 only mandates the Presiding Authority to arrange for the voting, ensuring absolute secrecy with regard to members casting their vote for or against the motion. Unlike Rule 133, it does not mandate the said Authority to record the factum of maintenance of secrecy in the proceedings. Even otherwise, since the petitioner never participated in the meeting on 17.4.2018, then, on what basis can he be allowed to contend infringement, if any, with regard thereto, more so in the absence of any material on that count.
50. Record also reveals that the meeting was scheduled to be held on 17.4.2018 at 11 a.m., which was convened and concluded within two hours, as is ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...26...
stipulated under Rule 132. To be precise, on 17.4.2018, the meeting commenced at 12.30 p.m., the resolution was placed at 12.40 p.m. and passed at 12.55 p.m., and .
at that time, all of the 8 members present, voted for the motion and none against.
51. This now takes us to the affidavit of Ms Sheela Devi, so placed on record by the petitioner with his rejoinder, reproduced supra.
52. We find the contents of the affidavit to be absolutely uninspiring in confidence. She is an educated lady, aged 60 years. She has been officiating as an elected member of the Panchayat Samiti for at least more than two years. On one hand, she states that on 3.4.2018 her signatures were obtained on simple papers by two persons i.e., members of Panchayat Samiti from Thaili Chakti and Shakla Barog (but does not disclose their names), yet she signed Form-32 on 17.4.2018 at Nankhari alongwith other seven members. Even at that point in time, she did not raise any objection. She states that prior to this date she had not signed Form-32. Well, what she wants the Court to believe is that the official ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...27...
record was interpolated and Form-32 was got filled up and inserted in the official record subsequently.
53. At this juncture, we may observe three things -
.
(a) she is not a party to the list, (b) that her version, even on affidavit, appears to be absolutely un-inspiring in confidence, and (c) stands falsified from the record.
54. We notice that she did not protest, having signed a simple paper on 3.4.2018. She does not state that she signed under pressure, threat or coercion. She does not explain the meaning of "obtained her signatures". She did not protest against such alleged act attributed to two members of the Panchayat Samiti. Also, if she had no intent of moving the resolution against the petitioner, why is it that she signed Form-32 on 17.4.2018. Further, even if her version has to be believed, then the record reveals that she was present at the time of voting and inferentially voted for the resolution, for there is no dissent, about which fact there is no denial in her affidavit, casting doubt over her version of not having signed Form-32 prior to 17.4.2018.
Further, we notice such version to be falsified from the contemporaneous official record, which in fact was ::: Downloaded on - 13/08/2018 23:02:54 :::HCHP ...28...
summoned only to satisfy our judicial conscience and test the veracity of contents of her affidavit.
55. In view of the aforesaid discussion, we anwer .
the questions as under:
(a) The ambit, scope and purport of Section 80 and Section 129 of the Act are distinct and separate, for application of Section 129 must not precede the meeting (ordinary or special), as envisaged under Section 80 of the Act.
(b) The quorum for passing a resolution of motion for no-confidence against the Chairman/Vice Chairman of the Samiti is to be the one prescribed under Section r 129 and not Section 80 of the Act.
(c) Form-32, prescribed under the Rules, is not required to be supplied to the person against whom such resolution is sought to be moved. It is the notice in Form-33, which is required to be supplied.
(d) It is not mandatory for the Presiding Authority to record the factum of secrecy having maintained at the time of casting of votes by the Members.
Hence, in view of the above, present petition is dismissed and disposed of, so also pending application(s), if any.
( Sanjay Karol ),
Acting Chief Justice
( Ajay Mohan Goel ),
August 13, 2018(sd) Judge.
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