Kerala High Court
Anitha vs Kanjirappilly Block Panchayat on 18 August, 2004
Equivalent citations: 2004(3)KLT211
Author: M. Ramachandran
Bench: M. Ramachandran
JUDGMENT M. Ramachandran, J.
1. Nine members of the Erumely Grama Panchayat have filed this Writ Petition, inter alia praying that Ext.P1 proceedings are to be quashed. Ext.P1 series have been issued by the Secretary to the Kanjirappilly Block Panchayat, who had been the authorised Officer by the State Election Commission, for presiding over a meeting of a No Confidence motion, and in the course of his above duties. By the notices, the members had been advised that a meeting was to be convened on 7th of August, 2004 for considering the No Confidence motion, which had been received by him against the President and Vice President of the Grama Panchayat. It is not disputed that a meeting had been convened thereafter. The petitioners had refrained from participating in the meeting, on the plea that notice, as issued by the second respondent, was not in consonance with law. The motion as above had been carried and thereafter the members had elected a fresh President and Vice President. The Writ Petition had been filed in the aforesaid context, challenging the proceedings from the stage of notice.
2. The justifiability and validity of the notices that had been served on petitioners 1 to 8, therefore, is substantially the question to be looked into. The petitioners submit that as far as the 9th petitioner was concerned, there is no case for the second respondent that notice had been served on him in person or by post, but the notice is claimed to have been given over to his wife. In respect of petitioners 1 to 8 also, what is claimed is that they had been given notices, in person, on 2nd of August, 2004. The petitioners, therefore, assert that there was no attempt made by the second respondent to comply with the statutory prescriptions, viz., sending the notices by registered post, and they point out that this aspect is not disputed.
3. The resultant position, according to the counsel for the petitioners, is that the steps taken are void. The statute mandatorily prescribed that notice about the No Confidence motion has to be served on the members by registered post and seven clear days were to be there for a, discussion of such motion. Mr. Mohan Jacob George further points out that since it is admitted that registered notice had not been sent, there is clear violation of the rules and all consequential steps for convening a meeting and the decision taken and further steps for unseating them are without authority of law. He had, in addition thereto, invited my attention to Section 157(2) and (4) of the Kerala Panchayat Raj Act, which could be extracted herein below, for showing the sequence of the proceedings:
"(2) Written notice in such form as may be prescribed of the intention to move any motion referred to in Sub-section (1) signed by such member of elected members of the Panchayat concerned as shall constitute not less than one third of the sanctioned strength of elected members of that Panchayat, together with a copy of the motion which is proposed to be moved shall be delivered in person by any of the elected members of the Panchayat signing the notice, to the officer as may be authorised by the Government in this behalf.
xx xx xx (4) The officer referred to in Sub-section (2) shall send by registered post to the elected members of the Panchayat concerned notice of not less than seven clear days of any meeting held under this section and the time appointed therefor. Notice regarding this shall be affixed in the Office of the Panchayat".
4. He had adverted to decisions of this Court as also the Supreme Court, reported in Nazeer v. State of Kerala, 2000 (2) KLT 92 Case No.98, Ramchandra v. Govind, AIR 1975 SC 915 -Para 25) for the proposition that when statute prescribed a specific method to be followed, it was obligatory on the functionaries under the statute to conform to the norms that are so laid down and it should not have been done in any other manner. Therefore, the second respondent had little discretion for economising, it is submitted. Hand delivery was not envisaged, but only a service by registered post. The authorities cited by the learned counsel for the petitioners appear to be clear in laying down this principle, which have been uniformly followed by the Supreme Court and this Court on a number of occasions.
5. He had also adverted to a decision reported in Collector of Central Excise v. Alcobex Metals, (2003) 4 SCC 630, wherein it had been held by the Supreme Court that when notice had been issued by an officer, who had not been authorised under law to issue such notice, the consequential proceedings were not valid and in effect invalidates alt subsequent proceedings. Though not applicable to the facts of the case, the rigidity of procedure was attempted to be established. Adverting to the decision reported in 1964 KLJ 230 (The Income Tax Officer v. Miyya Pillai), the learned counsel had attempted to highlight the principle that service of notice being a precondition, it may not be possible for the authority to canvas for a position that it was inconsequential, and the deliberations and the follow up action taken on that basis did not have legally binding character. Counsel had also referred to certain paragraphs, from Shackleton on the Law and Practice of Meetings, and more particularly referred to the passages regarding notice, the relevant portion of which could be extracted herein below:
"The notice must be served strictly in accordance with the regulations of the body on whose behalf it is given, and if any particular method is prescribed by statute or regulation having the force of law this also must be observed".
As an example, the learned author had also given an instance, where the meeting could have been held as invalid, as following:
"By the rules of a building society holders of completed and uncompleted shares were entitled to notice of all meetings of the society but in the case of holders of uncompleted shares, not to vote thereat. Notice convening a special meeting was sent only to holders of completed shares. The meeting was held to be not validly convened and omission to give notice in the present instance was not accidental within Section 3 of the Building Societies Act, 1960".
The essential principles had been summarised as:
"A valid notice must:
state the date, time and place of meeting;
be issued on the authority of the representative body (board, council, executive, etc.) under the name of an authorised person (secretary, director or other official); be sent to every person entitled to receive it;
comply with any statutory obligations (eg. as to extra ordinary or special resolutions in the case of companies); be given in the prescribed manner (hand, post, advertisement, or other means)".
Thus, the submission was that when there was no notice as authorized and prescribed by the statute, it could not have been possible for the second respondent to contend that the proceedings were valid. Further, even if the notice was served personally on 2nd of August 2004, when it was admitted that the meeting was held on 7th August, 2004 there was no clear seven days time as prescribed, which also was mandatory. The decision is vitiated for the above reason as well.
6. The second respondent has filed a counter affidavit. It has been attempted to show that as a matter of fact the petitioners were aware of the No Confidence motion as early as on 30th of July, 2004. In fact, when they were given such notices in person, they had refused to accept the notice and the notices were thereupon served by affixture on the same day. It is however, not disputed that there was no notice served on the 9th petitioner, at any time. The stand is that because of the affixture, there were seven clear days before the actual date of meeting. It is stated that the petitioners have adopted a technical stand without justification and having found that there was no sufficient support for continuing as office bearers, a surreptitious method is taken to see that the outcome of the motion, which was carried, was nullified.
7. The 4th respondent submits that as far as possible the office of the State Election Commission insists that notices which are to be served on parties are to be served as authorised by the relevant section. It is impermissible to use direction even for expediency, or for any other reason.
8. The additional respondents, who had got themselves impleaded, submit that they had received notices, by hand on 30.7.2004. According to them, the second respondent had waited till the last date for holding of the meeting and had substantially contributed to the debacle. As a person, who had been authorised by the State Election Commission, he was bound to know the consequences of his action and the conduct do indicate that he acted hand in gloves with the petitioners. They themselves were disabled from rendering advice to the official, as to the manner in which the proceedings were to be conducted. Therefore, they should not be left in a position high and dry, by requirement of repeating through an ordeal of giving a notice, and awaiting for the convenience of the authorised officer.
9. The claims and counter claims could be examined in the above background. When we advert to the statutory provisions, the indication is clear that the procedure has to be mandatorily 'applied. The method of affixture employed by the Secretary, perhaps was in view of the Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996. But it has to be noticed that affixture referred to by Rule 3(1)(d) could not have been employed here at all. Rule 3(1) indicates that personal service, affixture, and even the presumption of service, or a refusal to accept notice can be there only in cases where the Act, Rules or bye-laws do not provide for a specified method. Further, these rules are intended to operate only when the Panchayat intends to issue notices, bills orders summons etc. In the matter of no confidence, the Panchayat has no role to play. It has to be done by a person authorised by the State Election Commission. Hence the Rules have no application whatsoever.
10. Section 157 of the Kerala Panchayat Raj Act, with its heading 'Motion of no confidence' appears to be a comprehensive code of procedure. A motion expressing want of confidence is to be moved in accordance with the procedure laid down there alone, it is emphasised. The mandatory requirements under Section 157(2) are a written notice signed by required number of members and a copy of the motion to be moved. It has to be delivered by any of the signatories, to the authorised officer, and in person. No relaxation of any of the procedure is permissible, as every one of them are mandatory requirements. The authorised officer is to convene a meeting, at the office of the Panchayat within 15 working days from the date of delivery of notice. Sub-section (4) requires him to send by registered post, the notice of his intention to convene the meeting giving seven clear days. A notice in respect of this is to be published on the notice board.
11. The time limit is to be stuck to, and could be altered only for reasons beyond human control. Unending discussion also is discouraged, as the deliberations shall come to an automatic end at the expiry of three hours of the start of the meeting. Election is by open ballot, and the member has to sign with his name on the reverse side of the same. If the motion is carried, the officer will cease to hold office forthwith.
The minutes and the results are to be forwarded to the Government, for publication. Therefore, the procedures prescribed are of peremptory nature. The Departmental officers are expected to act in conformity with the statute. The prescriptions tally well with the accepted authorities on the subject. Even if hand delivery may be a functional method of service of notice, in public interest, I am of the view that the procedures as prescribed are mandatorily to be followed, as the results of the proceedings are of extreme consequences to both sides.
12. The stipulation for the minimum clear days also might be with specific objective. The notices are to be sent to the address registered by the member. Seven clear days are counted from the date of despatch of the notice. Also what is to be published on the notice board appears to be the steps taken by the officer concerned in this regard, rather than publishing a copy of the motion, or a copy of the notice given to the members.
13. The notice period of seven clear days also cannot be curtailed or dispensed With, when the requirement is by a statutory mandate. We have to take notice of the fact that political parties, and coalitions have been accepted as part and parcel of the political system. The Local Authorities (Prohibition of Defection) Act, 1999 has attempted to introduce stringent measures, and at certain situations, crossing of floor could cost the membership. Under Section 3 of the Act, inter alia, if a member of a political party overreaching a whip votes or abstains from voting in a meeting, he is liable to be disqualified. Thus, in spite of difference of opinion, a member at times may have to suffer the presence of a President/Vice President, who is in office. Stability of the system perhaps might have been the object sought to be achieved. After a motion is presented, therefore, sufficient time will have to be given to the political parties to arrange their affairs, and the period of seven days might have been prescribed for these formalities. Therefore, the second respondent could not have cut short the period. Sufficient reason is also not forthcoming as to why notice was not sent to the 9th petitioner.
14. Therefore I am constrained to accept the contentions of the petitioners, that there was no notice as envisaged by Section 157(2) and (4) of the Act for convening a meeting. The defects vitiate the entire transactions, including the conduct of the meeting.
15. I declare, therefore, that the convening of the meeting consequent to Ext.P1 on 7.8.2004 was irregular and the transactions that had taken place in the meeting did not confer any liabilities on the office bearers, who were in charge as on the said date. The declaration of the results, that the No Confidence motions had been carried, therefore is illegal and unsustainable. They are therefore set aside. The result will be that petitioners 1 and 2, who are respectively the President and Vice President of the Grama Panchayat, are to be deemed as continuing in office. The second respondent should inform the Government about these developments appropriately.
16. However, for this reason, namely that technically the meeting convened on 7.8.2004 was bad, is no reason to permit the petitioners to continue indefinitely. Because of the inept handling of the situation by the second respondent, a situation has developed and the effort of the additional respondents had been thwarted. However, the proceedings have to continue as the motion has not been defeated. I hold that the No Confidence motion presented by them before the second respondent are valid and they cannot be answerable for the delay that has come across. The second respondent is directed to hold the meeting, which is to be convened by him, within a period of 15 working days from today. He has to hold the meeting after giving notice to the members, as stipulated by the statute, by registered post and the meeting has to be convened only after seven clear days of issuing such notice. This may be done. The first and second petitioners are entitled to hold the office of President and Vice President in the meanwhile. Arrangements brought about, during the interregnum and the pendency of the Writ Petition, are to be retraced.
The Writ Petition is allowed. No costs.