SHETH KANTILAL CHUNILAL Vs. MODASA NAGAR PANCHAYAT

JUDGEMENT

(1.) The election to the Modasa Nagar Panchayat was held on. 10/04/1981. 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 18/05/1981 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 respo ndent No. 2 issued a circular calling the meetings of the Committees so constituted for the election of their Chairman on 22/05/1981 It appears that in the meantime on 19/ 20/05/1981 some of the members of the various Committees so constituted submitted their resignations. On the same day that is 20/05/1981 respondent No 2 cancelled the meetings of the Committees called on 22/05/1981 The case of the petitioners is that after they learnt about the concellation 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 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 26/05/1981 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 30/05/1981. 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 meetings 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 27/05/1981. Annexure E to the petition stating that the reason for the cancellation of the Committee meetings which were proposed to be held on 22/05/1981 had been stated in the notice of cancellation and that the Committee meetings which were called on 30/05/1981 were illegal in that under Rule 51 of the Gujarat Gram and Nagar Panchayat (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 sec. 82 of the Gujarat Panchayats Act 1961 (herein after called the Act). A postscript was added to that letter Annexure E addressed to the Secretary of the Panchayat 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 30/05/1981. 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 aceepting the resignations of members of some of the Committees constituted at the meeting of 18/05/1981. These resignations were accepted at the said panchayat meeting. On the next day that is 1/06/1981 respondet No. 2 issued a circular for calling the panchayat meeting on 8/06/1981 with a view to filling in the vacancies created on the acceptance of the aforesaid resignations. At the meeting of 8/06/1981. twenty 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 out 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 sec. 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-sec. (5) of sec. 82 of the Act if the Chairman of the Panchayat is a member of any Committee constituted under sec. 81 of the Act he shall be the exofficio 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 sub-sec. (5) of sec. 82 of the Act he would have automatically become the exofficio Chairmen 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 Committee.

(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: