KANTILAL CHUNILAL Vs. MODASA NAGAR PANCHAYATMODASA

JUDGEMENT

(1.) The election to the Modasa Nagar Panchayat was held on 10th April 1981. The petitioners are members of the said Panchayat. The first meeting of the Panchayat was held on 18th April 1981 for the election of its Chairman and Vice-Chairman. The respondent No. 2 was elected the Chairman of the said Panchayat at the said election. The next meeting of the Panchayat was held on 18th May, 1981 for the constitution of the statutory as well as other Committees of the Panchayat. At the said meeting the statutory Committees, namely, the Executive Committee as well as the Social Justice Committee and few other Committees were constituted. On the very same day, respondent No. 2 issued a circular calling the meetings of the Committees so constituted for the election of their Chairman on 22nd May, 1981. It appears that in the meantime on 19/20th May, 1981 some of the members of the various Committees so constituted submitted their resignations. On the same day, that is, 20th May 1981, respondent No. 2 cancelled the meetings of the Committees called on 22nd May, 1981. The case of the petitioners is that after they learnt about the cancellation of the meetings, petitioner No. 1 and another member met respondent No. 2 to find out why the Committee meetings were cancelled. It is their case that respondent No. 2 did not give a satisfactory reply for the cancellation of the Committee meetings but merely stated that the reason was stated in the circular cancelling the said meetings. It may here be mentioned that the reason assigned by respondent No. 2 in the circular, Annexure "A" to the petition, for the cancellation of the Committee meetings was "some unavoidable reasons". Since respondent No. 2 did not elaborate, some members submitted a Memorandum to him on 26th May, 1981 complaining about the arbitrary manner in which the Committee meetings were cancelled for no good reason. On the same day, they also issued a circular in the form of Annexure "C" to the petition, convening the Committee meetings on 30th May, 1981. They also wrote a letter to the Secretary of the Panchayat on the same day, Annexure "D" to the petition, requesting him to remain present at the said Committee meeting for recording its minutes. A copy of this letter was forwarded to respondent No. 2 for information. Respondent No. 2 thereafter wrote a letter on 27h May, 1981, Annexure "E" to the petition, stating that the reason for the cancellation of the Committee meetings which were proposed to be held on 22nd May, 1981 had been stated in the notice of cancellation and that the Committee meetings which were called on 30th May, 1981 were illegal in that under Rule 51 of the Gujarat Gram and Nagar Panchavats (Procedure) Rules, 1963, (hereinafter called 'the Rules'), only the Chairman of the Panchayat was entitled to convene the first meetings of the Committees constituted under Section 82 of the Gujarat Panchayats Act, 1961 (hereinafter called 'the Act'). A postscript was added to that letter, Annexure "E", addressed to the Secretary of the Pachayat instructing him to forbear from recording the minutes of the Committee meetings as the said meetings were inconsistent with the provisions of the Act. On receipt of this letter from respondent No. 2, a few members of the various Committees wrote to him on 30th May, 1981, Annexure "F" stating inter alia, that they would have no objection if he chaired the meetings of the various Committees to be held on that day. They also complained in that letter that the instruction to the Secretary of the Panchayat not to record the minutes of the meetings was contrary to law. After the receipt of that letter on that very day the Committee meetings were held as proposed and were attended by all the members of the various Committees. Annexure "G" to the petition is a copy of the minutes of the meeting of the Executive Committee held on that day for the election of its Chairman. Similar minutes in respect of the election of the Chairman of other Committees were also prepared and were forwarded to respondent No. 2 for being entered in the proceeding book of the Nagar Panchayat. Respondent No. 2 by his letter of even date, Annexure "H", addressed to Shri Becharbhai J. Bharwad, one of the Committee members, refused to take cognizance of the election of Chairman of various Committees and forwarded a copy thereof to the Panchayat Secretary with instructions not to take note of the said Resolutions. It appears that in the meantime the respondent No. 2 had called a meeting of the Panchayat on the same day for the purpose of accepting the resignations of members of some of the Committees constituted at the meeting of 18th May 1981. These resignations were accepted at the said panchayat meeting. On the next day, that is, 1st June 1981, respondent No. 2 issued a circular for calling the panchayat meeting on 8th June 1981 with a view to filling in the vacancies created on the acceptance of the aforesaid resignations. At the meeting of 8th June 1981, tweaty members were present. Respondent No. 2 took the chair and conducted the business of filling in the vacancies caused in the various Committees by the resignations earlier accepted. The name of respondent No. 2 was proposed as a member of the Executive Committee, Health and Public Works Committee, Water Works Committee, Octroi Committee and Town Planning Committee. Admittedly, he did not vacate the chair on his name being proposed as a member of the aforesaid Committees, but continued to conduct the business of that meeting in his capacity as the Chairman of the Panchayat. Even though the petitioners objected to the name of respondent No. 2 being proposed as a member of the aforesaid Committees, as he was in the chair, the said objection was overruled by respondent No. 2. The names of other members of the Panchayat were also proposed for filling up the said vacancies in the various Committees and consequently the matter was put to vote. There was a tie, ten members voting for the appointment of respondent No. 2 on the aforesaid Committees and the remaining ten voting against him. As a result of this tie, respondent No. 2 acting under Section 82 of the Act, utilised his casting vote in his own favour and thus got himself appointed as a member of the aforesaid Committees. It may here be mentioned that according to the proviso to Sub-section (5) of Section 82 of the Act, if the Chairman of the Panchayat is a member of any Committee constituted under Section 81 of the Act, he shall be the ex-officio Chairman of such Committee or Committees. Thus, by the exercise of the casting vote, respondent No. 2 got himself appointed as a member of the aforesaid Committees and by virtue of the proviso to Subsection (5) of Section 82 of the Act, he would have automatically become the ex-officio Chairman of the said five Committees. The petitioners, therefore, were left with no alternative but to question the appointment of respondent No. 2 as Member of the aforesaid Committees.

(2.) After the institution of the present petition, my learned brother B. K. Mehta, J., while admitting the petition, granted an ad interim injunction in the following terms :-

(3.) Three questions, therefore, arise for consideration In this petition, namely :-