Rajasthan High Court - Jaipur
Laxman Meena vs State Of Rajasthan And Anr. on 27 February, 1998
Equivalent citations: AIR1998RAJ306, 1998(3)WLC672
Author: Gyan Sudha Misra
Bench: Gyan Sudha Misra
ORDER Gyan Sudha Mishra, J.
1. The petitioner Laxman Meena who had been elected as Sarpanch of Gram Panchayat Chhoti Udai in the District Sawai Madhopur has challenged the initiation of a proceeding by the Chief Executive Officer, Zila Parishad, Sawai Madhopur for passing No Confidence Motion against the petitioner for which a notice was issued on 24-9-97 convening a meeting for the said purpose which was to be held on 14-10-97.
2. The grounds of challenge to the said proceeding are based on Section 37 of the Rajasthan Panchayat Raj Act, 1994 read with Rule 21 of the Rajasthan Panchayat Raj Rules. 1996 and the principal contention in this regard is that the meeting for the said purpose should not be allowed to be conducted since the very initiation of the proceeding has been done violating the mandatory procedure enumerated in the aforesaid provisions of the Act.
3. The controversy therefore, which crops up for consideration in the case at hand is, whether a No Confidence Motion against an elected Sarpanch can be allowed to be initiated and proceeded with on the plea that even though the procedure for such action has not been followed, the same should not be interfered with, if ultimately the motion has been carried through.
4. In order to test the correctness of this proposition, it is worthwhile to quote Section 37 of the Act in so far as, it is relevant for the purpose of this case, which is as follows :-
"37.-Motion of No-confidence in chairpersons and deputy chairpersons....................(I)A motion expressing want of confidence in the chairperson or deputy chairperson of a Panchayati Raj Institution may be made in accordance with the procedure laid down in the following sub-sections.
(2) A written notice of intention to make the notion in such form as may be prescribed, signed by not less than one-third of the directly elected members of the Panchayati Raj Institution concerned together with a copy of the proposed motion, shall be delivered in person by any one of the members signed by the competent authority.
(3) The competent authority shall thereupon...........(i) forward a copy of the notice, together with a copy of the proposed motion to the Panchayat in the case of a Sarpanch or Up . Sarpanch, to the Panchayat Samiti, in the case of a Pradhan or Up-Pradhan and to the Zila Parishad in the case of a Pramukh or Up-Pramukh;
(ii) convene a meeting for the consideration of the motion at the office of the concerned Panchayati Raj Institution on a date appointed by him which shall not be later than thirty days from the date on which the notice under sub-section (1) was delivered to him; and
(iii) give to the members a notice of not less than fifteen clear days of such meeting in such manner as may be prescribed.
Explanation.- In computing the period of thirty days specified in this sub-section, the period during which the convening of a meeting is stayed by a Court shall be excluded.
(4) The competent authority shall preside at such meeting : Provided that if, for reasons to be recorded in writing, he is unable to do so, the officer nominated by him shall so preside.
(5) A meeting convened under sub-section (3) shall not be adjourned."
5. It is further relevant to relate the case of the petitioner in its essential details which is that the petitioner was elected as Sarpanch in the Gram Panchayat referred to hereinbefore directly by the electorates held in the month of March, 1996. In course of discharge of his duties he complained against two ward Panchas that they had crossed the prescribed limit of two children even after the cut off date of 21 -11 -95 laid down in the Act of 1994 as a result of which they have disqualified themselves to continue as Ward Panch. He, therefore, recommended for enquiry into the matter. This act of the petitioner against the Ward Panchas triggered, which gave them a cause to initiate a proceeding for passing No Confidence Motion against the petitioner and infect a proceeding was initiated when an application for this purpose was submitted by those two Ward Panchas on 18-9-97 to the Chief Executive Officer vide Annex-5 for which a notice was issued on 24-9-97 intimating that the motion for passing no confidence would be held on 14-10-97. The application dated 18-9-97 and the notice dated 24-9-97 convening a meeting which was to be held on 14-10-97 for passing No Confidence Motion has been challenged by the petitioner in this writ petition on several grounds. 6. Challenging the proceeding for No Confidence Motion against the petitioner, it was first of all submitted by Shri B.L. Sharma learned counsel for the petitioner, that on 18-9-97 an application for initiating the No Confidence Motion was submitted at the instance of Smt. Savitri Devi and Smt. Prem Devi to the Collector. Sawai Madhopur expressing no confidence in the petitioner. From this application which was submitted for initiating the No Confidence Motion dated 18-9-97. It would be revealed that this was neither submitted by the required number of Panchas nor the signatories of the application or any one of them presented this application or sent it by post before the Chief Executive Officer as there is no endorsement regarding presentation available on the application and the petitioner came to know that in fact the Chief Executive Officer, Zila Parishad. Sawai Madhopur was not even present at Sawai Madhopur as he was on tour and returned late at night to Sawai Madhopur after which he proceeded for training at Jaipur but the application for initiating the No Confidence Motion dated 18-9-97 was submitted before the Addl. Collector, Sawai Madhopur by the Panchas and was addressed to the District Collector. What Shri Sharma is trying to contend out of these facts, is that there was complete non-compliance of the mandatory provision of sub-
.section (2) of Section 37 of the Act as there was no endorsement of the Chief Executive Officer on the application fornicating the No Confidence Motion or the mandatory rule regarding its proper initiation is wholly lacking since the application for No Confidence Motion has to be initiated through the Chief Executive Officer, Zila Parishad and it could not have been entertained at the behest of anyone else other than the Chief Executive Officer himself.
7. However, a meeting was initiated for passing of such No Confidence Motion which was to be held on 14-10-97 at the office of Gram Panchayat Udai Khurd regarding which a notice dated24-9-97 was issued for conducting a meeting as envisaged under Rule 21(2) of the Rajasthan Panchayati Raj Rules, 1996 in clear contravention of the mandatory provisions of Rule 21 Clause (1) and (2) of the Rules of 1996 which lays down as follows :-
^^21- vfo'okl izLrko dk uksfVl & 1 /kkjk 37 ds v/khu fdlh iapk;rh jkt laLFkk ds v/;{k ;k mik/;{k esa fo'okl dk vHkko vfHkO;Dr djus okyk izLrko djus ds vk'k; dk fyf[kr uksfVl iz:i A esa gksxk vkSj lajiap@mi ljiap] iz/kku@mi iz/kku ds ekeys esa eq[; dk;Zikyu vf/kdkjh] ftyk ifj"kn dks vkSj izeq[k@ mi ize[k ds fo:) izLrko gkus ds ekeys esa fodkl vk;qDr dks ifjnRr fd;k tkosxk A 2- cSBd vkSj mlds fy, fu;r rkjh[k vkSj le; dk uksfVl eq[; dk;Zikyu vf/kdkjh@fodkl vk;qDr }kjk cSBd dh rkjh[k ls de ls de 15 fnu iwoZ Mkd esa Mkys tkus ds izek.k i= ds v/khu Mkd ls] izR;{k fuokZfpr izR;sd iap@lnL;
dks mlds lkekU; fuokl LFkku ij iz:i 2 esa Hkstk tk;sxk A ,sls uksfVl dh izfr ,slh iapk;rh jkt laLFkk ds lwpuk&iVV ij Hkh yxk;h tk;sxh ijUrq ,sls fdlh LFkku dh n'kk esa tgka dksbZ Mkd?kj ugha gks ;k tgka uksfVl dh rkehy 'kh?kzrk ls ugha dh tk ldrh gks] ,slk uksfVl lacaf/kr rglhynkj ds ek/;e ls rkehy fd;k tk;sxk A**
8. Referring to this rule it has been urged that as per Section 37 clause (2) of the Act of 1994. Initiation of No Confidence Motion ought to be held clearly illegal as a written notice of intention to make the motion in such form as may be prescribed, signed by not less than one-third of the directly elected members of the Panchayati Raj Institution concerned together with a copy of the proposed motion is required to be delivered in person by any one of the members signing the notice to the Competent Authority and this section further provides that on receiving the notice the Competent Authority shall thereupon forward a copy of the notice together with a copy of the proposed motion to the Panchayat in the case of a Chairperson of Panchayat. According to the petitioner's contention no notice of intention to make the motion had been initiated or submitted to the Chief Executive Officer of Sawai Madhopur as per the mandatory requirement of Rule 21(1) in view of Section 37 of the Act.
9. Shri Sharma further submitted that a format is provided as Form I under Rule 29(1) of the . Rules for giving notice of intention of the No Confidence Motion and the notice of intention of No Confidence instead of being in the prescribed format Form I was prsented which cannot be treated to be a notice initiated in the eye of law and, therefore, the Chief Executive Officer acting upon such proposed motion acted without jurisdiction by convening the meeting on 4-10-97. Thus the challenge to the initiation of No Confidence Motion is on the grounds which in substance are three-fold firstly the No Confidence Motion was not initiated by the Chief Executive Officer, secondly the copy of the proposed motion was not accompanied which was to be initiated and thirdly it should have been presented by one of the members constituting the Committee for passing the No Confidence Motion and in view of the non-compliance of all the mandatory requirements envisaged in Section 37 Clause (2) of the Act read with Rule 21 renders passing of the No Confidence Motion illegal in the eye of law. To reinforce his submission Shri Sharma has relied on a judgment reported in AIR 1964 SC 358 : (1964 (1) Cri LJ 263) State of Uttar Pradesh y. Singhara Singh wherein it has been recorded "that if a Statute conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed for if this were not so. the statutory provision might as well not have been indicated". Thus what has been tried to be contended by Shri Sharma is that if specific rules have been prescribed for initiating and passing a No Confidence Motion, it should not be treated as a mere technicality, as the Legislature has framed these rules with a purpose which is required to be followed in letter and spirit.
10. Refuting the submissions of the petitioner's advocate, Shri Choudhary on behalf of the impleaded respondent has submitted that the No Confidence Motion which has been passed against the petitioner duly finds support from a majority of the members and this Court should not resort and enter into mere technicalities in ortierto find fault with the passing of the No Confidence Motion so as to hold it illegal. In so far as the factual details given out by the petitioner is concerned, it has not been refuted by the respondents side, Shri Choudhary on his part also has relied on several judgments of the Apex Court in support of his submissions to suggest that it is the substance of an action which should weigh with the Court while adjudicating an action legal or illegal. He has first of all relied on AIR 1956 SC 140, Pratap Singh v. Shri krishail Gupta wherein the learned Judges had observed" that the tendency of the Courts towards technicality is to be deprecated for it is the substance that counts and must take precedence over mere form. Their Lordships had observed therein that some rules are "vital and go to the root of the matter and they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole provided no prejudice ensues and when the legislature does not itself state which is which, judges must determine the matter exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines." This judgment in its turn had relied on the ratio of the judgment reported in AIR 1940 PC 230. Shri Choudhary has further relied on a judgment reported in AIR 1993 SC 2040 : (1993 All LJ 994) Mohan Lal Tripati v. District Magistrate, Rae Bareilly wherein removal of the President of a municipality by a vote of No Confidence was held to be valid on the ground that even though the President of Municipality had been elected directly by the electors, it is immaterial whether he is elected directly by electors or indirectly by the Board provided it is in public interest and provisions relating to election, qualification, resignation and removal of President is not opposed to concept of democracy. However, alt these concepts are not in dispute in this writ petition and it is nobody's case that under the Rajasthan Panchayati Raj Act if there is a provision for passing of No Confidence Motion against an elected body, even then they should not be removed because they have been directly elected.
11. Under the circumstances, what emergesis that while there may be rules which are mandatory in nature in order to give effect to a purpose or translate an intention into action for which there are a set of rules and provisions there may be situations where compliance of a set of rules ultimately is to maintain its form more than its-substance and hence the moot question would be whether the substance should be allowed to prevail I over the form as it has been submitted by Shri Choudhary that since a No Confidence Motion has been passed by a majority of members this Court should not entertain arguments raised on behalf of the petitioner that the No Confidence Motion was not properly and legally initiated in the sense that it was not signed by required number of members at the time of its initiation and was also given to the Chief Executive Officer in a casual and cavalier manner on a plain paper and not on the prescribed form.
12. Although this salutary legal position has to be honored and the tendency of the Courts towards technicality indeed requires to be deprecated, yet having deliberated upon the controversy involved in this case, one cannot lose sight of the fundamental rule of interpretation that the Courts are not required to legislate and can merely interpret the section, it cannot rewrite, recast or redesign the section. It is also to be borne in mind that in interpretation of the provision, the exercise undertaken by the Court is to make explicit the intention of the legislature which enacted the legislation and it is not for the Court to reframe the legislation for the very good reason that the powers to legislate have not been conferred on the Court and the Courts must find out the literal meaning of expression and in the task of such consideration it has to read the order and take notice of the object of the Statute. In the instant case it is difficult to ignore that if a specific provision has been incorporated in the Act of 1994 in order to deal a particular situation regarding initiation of No Confidence Motion can it be treated merely directory and not mandatory even though it relates to a situation wherein a particular action would result into nullifying the will of majority by the minority by resorting to provision of No Confidence Motion. It is equally relevant to remember that a detailed provision has been laid down under the Rajasthan Panchayati Raj Act, 1994 where specific provisions giving out minute details regarding the method and manner of initiation and passing of the No Confidence Motion has been meticulously laid down. It is a well known rule of interpretation that each and every word that has been laid down under the Act by the Legislature has to be read as giving a meaning to the letter and spirit laid down under the Act and no word should be treated as superfluous. The situation in this case, however, is not regarding interpretation of a particular word but the specific procedure laid down for passing the No Confidence Motion which is sought to be ignored by the respondents and is attempted to be justified by their counsel on the plea that the Courts should be slow in being technical in order to administer justice. It is no doubt true that there may be occasion where stickler to rule may ultimately result into sacrifice of justice and equity and in that situation it would be perfectly proper to give a go-by to the rule if ultimately it is to uphold the ultimate end that is justice and there are catena of cases of this nature where Courts in sound use of their Discretion have delivered justice to the affected arty by interpreting the rule in a manner where form is not allowed to prevail over substance. Pratap Singh's case relied upon by the respondents vide AIR 1956 SC 140 is also one such case but the said case was a simple case of candidates who were required to mention their caste in the old form but in the new form that was printed inst egad of caste the occupation of the candidate had to be entered and the only person who kept himself abreast of the law was the first respondent in the said case, who in the printed form struck out the word caste and wrote occupation instead of caste as the new rule required. The said candidate obviously acted in consonance with the rule and had acted in the correct manner and yet his action was challenged that it was contrary to the rule. However the procedure relating to No Confidence Motion deals with a situation where it relates to the governance of a local self government like the Panchayat wherein a specific remedy has been provided for removal of an erring elected body for which a method has been meticulously chalked out under the Act known as passing of no confidence motion where emphasis has been laid on technicality by the legislature itself by laying down a detailed procedure in this regard as for instance in the Representation of People Act. 1951 which cannot be said to be without purpose since the detailed manner in which the prescriptions have been laid down, clearly seem to suggest that the intention of the Legislature was that every care should be taken to see that an impartial verdict comes out before the elected member has to quit. An observation of a similar nature can be gathered from a Full Bench decision of the High Court of Allahabad in the case of Mahesh Chandra v. Tara Chand reported in AIR 1958 Allahabad, 374.
13. In this context it would also not be futile to mention that the No Confidence Motion in the recent years has become more of a sport than a serious business as is evident from the fact that not a day passes where cases of No Confidence Motion is not brought before this Court where ii is challenged on one ground or the other, which has compelled this Court to infer that the provision of passing No Confidence Motion has become more of a weapon to settle personal scores than to treat an ailment against an erring member bypassing a No Confidence Motion as for instance in this case the petitioner has come out with a case that he had complained against the respondents on the ground that they have disqualified themselves to continue as members of the Panchayat Samiti which the petitioner was duly bound to report in due discharge of his duties diligently but that on the contrary backfired as it was at their instance that a No Confidence was initiated against the petitioner which has not been signed by the required number of persons and the same was done in such haste that the rules and the procedures under the Act were given a complete go-by. In a situation of this kind where cases of No Confidence Motion are ceaselessly brought to the notice of this Court and elected members are thrown out by using the weapon of No Confidence Motion which ultimately results into termination of their membership the provision of No Confidence Motion and its initiation without strictly adhering to its procedure cannot be treated lightly by taking a view that it would be a mere technicality to resort to such procedure. It is for this reason that the objections which have been taken on behalf of the petitioners while challenging the No Confidence Motion cannot be treated lightly so as to infer that even if the No Confidence Motion has been passed strictly without resorting to the procedure laid down in this behalf still the Courts should ignore its non compliance brushing it aside as mere technicality. The initiation and passing of No Confidence Motion is therefore certainly required to be done with some responsibility and element of seriousness and it is surely not expected of the members to initiate it at the drop of a hat or to settle personal scores or political ill-will. 1 consider it appropriate in this context to quote from the Full Bench judgment of the Allahabad High Court (supra) which has observed as follows :-
"A no confidence motion is a patent weapon in the hands of an elected body whereby that body keeps under check its officers, it is also a matter of great significance and vital importance to the officers that such motions are not lightly made or carried through without due regard being had to the prescribed form for their passing....................."
14. Although it was also observed further that after a motion has been properly made and passed by a body competent to pass, it becomes of vital importance that effect should be given to the motion and mere procedural errors such as errors in communication etc. should not have the effect of setting it at naught the duly recorded view of the statutory majority. But in the case at hand, the very initiation of the proceeding is suffering from violation prescribed under Section 37 of the Act of 1994 and the Rules of 1996. It is, however, also true that serious charges have been leveled against the petitioner regarding defalcation and misappropriation of fund for initiation of no confidence motion, but it is missed that there there are already provisions under the Act of 1994 to deal with such situation, when after preliminary enquiry, the delinquent may be suspended and thereafter can also be removed but in order to resort to the remedy of "No Confidence Motion", the Act of 1994 clearly envisages compliance to specific method which cannot be treated as directory and not mandatory.
15. It may further be taken note of a vital fact that under the Rajasthan Panchayati Raj Act of 1994, a member is held disqualified to continue if he/she has given birth to a third child or more after November, 1995 and in case a complaint has been lodged against such member, an enquiry for holding such member disqualified has to be initiated. Such member may also be kept under suspension. In view of this provision, the membership of such initiators of the motion against the petitioner themselves were questionable and hence it is difficult to infer how the motion could be carried through at the instance of those members whose qualifications were itself under question. The "No Confidence Motion" therefore also appears to be malicious and under this background, it is all the more necessary that before initiating such proceeding. it should have been signed by the required number of members.
16. For the reasons assigned the lapses which have been committed by the respondents in initiating the No Confidence Motion cannot be treated as mere technicality having no bearing on the matter so as to brush it aside as minor lapses having no vital importance which this Court ought not to reckon seriously.
17. The No Confidence Motion, therefore, which had been initiated against the petitioner, completely violating the procedure laid down under the Act, has to be struck down as illegal and void and accordingly the No Confidence Motion initiated or passed against the petitioner is quashed. The writ petition accordingly stands allowed but in the circumstances without costs.