Kerala High Court
Valsalam vs State Of Kerala on 28 February, 2003
Equivalent citations: 2003(1)KLT858, 2003 A I H C 2119, (2003) 1 KER LT 858 (2003) 2 KHCACJ 492 (KER), (2003) 2 KHCACJ 492 (KER)
JUDGMENT R. Rajendra Babu, J.
1. Petitioner is an elected member and the Vice President of the Kanjiramkulam Grama Panehayat, the 4th respondent. Smt. Sarasi Kuttappan, the 6th respondent herein, was the President of the above Panchayat. A no confidence motion was moved against the President of the Panchayat viz. the 6th respondent on 13.11.2001 and the majority of the members voted in favour of the motion and the motion was carried with the support of the majority members. Accordingly the 2nd respondent, the representative authorised by the Election Commission, who convened and presided over the above meeting, had sent the copy of the minutes of the meeting together with copy of the motion and the result of voting to the Government and also to the Election Commission as provided by law. On 15.11.2001 the 6th respondent filed a petition before the 1st respondent under Section 191 of the Panchayat Raj Act (for short, the Act) for rescinding the result of the no confidence motion describing it as a resolution passed by the Panchayat. The 1st respondent by Ext. P3 order dt. 5.12.2001 set aside the proceedings of the meeting held on 13.11.01. The petitioner and some other members of the Board challenged Ext. P3 order before this court by filing O.P. 37349/01. The above O.P. was referred to the Division Bench. The Division Bench in Ext. P4 order dt. 14.12.2001 observed that the order passed by the 1st respondent was not observing the mandate in Section 191 (2) of the Act and held that in view of the no confidence motion being carried with majority of the members, the 6th respondent was not entitled to continue as the President. The matter when came up before the Division Bench again on 19.2.2002 passed Ext. P5 order treating Ext. P3 order passed by the Government only as a preliminary order and found that a final order has to be passed observing the provision under Section 191 (2) of the Act. Accordingly the matter was referred to the Ombudsman for orders under Section 191(2) of the Act, While the matter was pending before the Ombudsman, the present 6th respondent filed O.P. 9645/02. A Division Bench of this Court by Ext. R6(a) judgment dt, 17.7.02 did not interfere with the matter and observed that the reference shall be disposed of by the Ombudsman as expeditiously as possible. Thereafter the 1st respondent passed Ext. P6 order rescinding the result of the majority of the members of the Panchayat voting in favour of the no confidence motion. The above order, Ext. P6, is under challenge in this O.P.
2. Heard the learned counsel for the petitioner, the standing counsel for the Election Commission, the learned counsel for the 6th respondent and also the learned Government Pleader.
3. The important question for consideration is whether the State has the power or authority to rescind the result of the majority of the members voting in favour of a no confidence motion invoking Section 191 of the Act. Admittedly a no confidence motion was moved against the President of the Panchayat viz, the 6th respondent in accordance with law and it was carried with majority members voting in favour of the no confidence motion. Admittedly the meeting held on 13.11.01 was presided over by the 2nd respondent, the representative authorised by the Election Commission, and the majority of the members voted in favour of the motion. When a motion is carried with majority members voting in favour of the motion, as per Section 157(12) of the Act, the President would cease to hold office as the President of the Panchayat and the above seat shall stand vacant forthwith. The main argument advanced by the learned counsel for the petitioner was that Section 191 of the Act would authorise the 1st respondent to cancel or vary a resolution passed or decision taken by the Panchayat on the grounds enumerated therein. It was further submitted that the announcement of the result of the no confidence motion was neither a resolution passed nor a decision taken by the Panchayat and Section 191 could not have any application and as such the State was not entitled or empowered to interfere with the result of the voting in connection with the motion of no confidence against the 6th respondent and Ext. P6 order was passed without authority or jurisdiction. The learned counsel for the 6th respondent argued that it was a resolution which was passed by the Panchayat and as such the State had the power to cancel or set aside the above for noncompliance of the statutory formalities. It was further submitted that the Division Bench had considered the same as a resolution and it was on that basis that a direction was issued to the State to refer the matter for the decision of the Ombudsman under Section 191(2) of the Act and as such the above decision cannot be interfered by this court. Though such an argument was advanced, I do not think that the same can be accepted. It was not decided by the Division Bench that the result of a no confidence motion was a resolution passed by the Panchayat. In fact the Division Bench had left open that matter to be decided separately in Ext. P5 judgment. Ext. P5 judgment of the Division Bench reads:
"In this view of the matter we leave open the other contentions viz. whether the resolution passed in exercise of power under Section 157 is revisable under Section 191 and whether the power exercised is vitiated by legal mala fides. We make it clear that we leave open these contentions of the petitioner at this stage. But however the impugned order made on 5.12.2001 would be treated as an interim order and would continue to operate till the final decision is taken by the Government under Section 191 of the Act. We also direct that status quo regarding holding of the office of the President as on today will be maintained until the decision is taken by the Government."
Thus it is clear that the Division Bench has not considered the above aspect and the question whether the Government is competent to invoke Section 191 and to set aside the result of the no confidence motion is left open to be decided and hence the above argument advanced by the learned counsel for the 6th respondent cannot be accepted. Further it is settled law that jurisdiction cannot be conferred by concession of parties and there cannot be any estoppel against statute. The question being as to whether Section 191 confer jurisdiction to the State to set aside the result of the voting of a no confidence motion, parties cannot confer jurisdiction on the State. Hence the question of jurisdiction has to be decided on the basis of Section 191 itself.
4. It would be relevant to examine the relevant provisions of the Act to ascertain whether the result of voting in a no confidence motion is either a decision taken or a resolution passed in a meeting of the Panchayat. Chapter XV of the Act deals with the meetings, powers, functions, duties and property of Panchayat. Section 161(2) says that every meeting of a Panchayat shall be presided over by its President or, in his absence, the Vice President or in the absence of both, any member chosen by the members present at the meeting. Sub-section (9) of Section 161 says that the Secretary of the Panchayat shall forward a copy of the minutes of every meeting of the Panchayat and the copy of the note of descend, if any received under Sub-section (8), to the Government or to the officer authorised by the Government in this behalf, within ten days after the date of the meeting. Thus Section 161 would reveal that every meeting of the Panchayat shall be presided over by the President or the Vice President and the Secretary of the Panchayat shall make the minutes. But a separate procedure had been contemplated under Section 157 of the Act foe holding a meeting of the elected members for considering the no confidence motion. Chapter XIV of the Act deals with the provisions relating to members and President of Panchayat. Sections 152 to 159 in Chapter XIV deal with the oath or affirmation by members, election of President and Vice President, their rights and functions, and liability to submit returns, right to honorarium, motion for no confidence etc. Section 157 deals with the procedure for no confidence motion. The notice of no confidence motion will have to be given to the officer authorised by the Election Commission as per Section 157(2). The above officer shall convene the meeting of the elected members of the Panchayat for considering the no confidence motion in accordance with Sub-section (3). The meeting thus convened shall be presided over by the officer authorised by the Election Commission as provided under Sub-section (5). As soon as the meeting is convened, the person presiding shall read at the meeting the motion for consideration and it shall be open for debate as per Sub-section (7), After the discussion the matter shall be put to vote under Sub-section (9) and the election shall be by means of open ballots as provided under Sub-section 9(A) and if the majority of the members present vote in support of the motion, then the motion shall be carried with and the President shall cease to hold office thereafter and his office shall be deemed to be vacant forthwith in view of Sub-section (12). The copy of the minutes of the meeting together with the copy of the motion and the result of voting therein shall be forwarded to the Government by the officer presiding as per Sub-section (11). Sub-section (12) would further say that the above officer presiding over the meeting shall report the vacancy of such office to the Government and the Election Commission and on receipt of such a report the Government shall notify in the gazette the cessation of the office by the President. Thus a separate procedure is contemplated under law for moving a no confidence motion and in fact it has been made a function of the Election Commission to deal with a motion for no confidence. The holding of a meeting to consider a no confidence motion is not a function of the Panchayat and it need not be Presided over by the President of the Panchayat. The meeting for discussing a no confidence motion is convened by the representative of the Election Commission. Notice to move a no confidence motion has to be given to the authorised representative of the Election Commission and he will convene the meeting of the elected members and preside over the meeting and the result of voting also will be announced by him. A decision or a resolution can be taken only in a meeting of the Panchayat. A meeting of the elected members convened by the representative of the Election Commission is not a meeting of the Panchayat. Every meeting of the Panchayat has to be presided over by the President or Vice President or any other member a meeting of the elected members convened by the representative of the Election Commission is not a meeting of the Panchayat. Section 191 would apply only when there is a decision taken or a resolution passed by the Panchayat and such a resolution or decision alone can be set aside or modified by the Slate invoking Section 191 of the Act. Here a motion of no confidence was moved in a meeting convened by the representative of the Election Commission and it had been carried with majority of the members voting for the motion. The result of such voting alone is announced by the representative of the Ejection Commission. In fact the Presiding Officer has to report that the office of the President has become vacant and by getting the report, the Government has to publish it in the Gazette in view of Sub-section (12) of Section 157. There is no provision for the State to interfere with the result of voting and to reverse or set aside the same. Section 191 does not contemplate any interference of the State on the result of voting. The persons who elected the President by democratic process has the right to remove him by democratic process and the procedure has been specified in the statute. Hence the announcement of the voting result of the no confidence motion would not amount to the passing of a resolution or decision taken by the Panchayat and as such Section 191 cannot have any application.
5. Sub-section 7 of Section 161 says that no resolution of a Panchayat shall be modified or varied or cancelled by the Panchayat within a period of three months from the date of passing of the same except by a resolution supported by two-third of the whole number of members of such Panchayat. The above provision would indicate that a resolution has to be moved before a meeting of the Panchayat which has to be presided over by the President or the Vice President. A meeting presided over by the representative of the Election Commission cannot be treated as a meeting of the Panchayat to transact a business of the panchayat. Section 191 would apply only in respect of a decision taken or a resolution passed by the Panchayat and Section 191 does not contemplate anything done in pursuance to a meeting held by the Election Commission or its representative. Hence the Stale has no authority or jurisdiction to interfere with the result of the no confidence motion invoking Section 191 of the Act.
6. Thus Exts. P3 and P6 orders were passed by the State without authority of law and those orders are illegal and accordingly Exts. P3 and P6 orders are set aside. The O.P. is disposed of as above.