SATUBHA K VAGHELA Vs. SAYLA TALUKA PANCHAYAT

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution the petitioner prays for a writ of mandamus or certiorari or other appropriate writ order or direction to set aside the resolution of respondent No. 1 dated 27th December 1963 at Annexture H and also to set aside the order dated 30th April 1964 of respondent No. 2 and to quash the proceedings pending in Misc. matter No. 1/64-65 and to prohibit respondent No. 2 from proceeding further with the said matter.

(2.) The petitioner is the Sar-Panch of Sayla Gram Panchayat hereinafter referred to as the Gram Panchayat. Respondent No. 1 is the Sayla Taluka Panchayat hereinafter referred to as the Taluka Panchayat. Respondent No. 2 is the Taluka Development Officer and respondent No. 3 is an elected member of the Gram Panchayat. Under sec. 60 of the Gram Panchayats Act 1961 Act No. VI of 1962 hereinafter referred to as the Act any member of a Gram Panchayat who is absent for more than three consecutive months from the Gram shall cease to be a member and his office shall be vacant. Under sec. 50 clause (2) any dispute as to whether a vacancy has or has not occurred under that section shall be referred for decision to the competent authority. It is not in dispute that the Taluka Panchayat was appointed as a competent authority by the Government under sec. 2 clause (5) of the Act. The Taluka Panchayat had by a resolution dated 15th November 1963 hereinafter referred to as the first resolution assigned the powers of the competent authority under sec. 50 to the executive committee of the Taluka Panchayat and by another resolution hereinafter referred to as the second resolution or the impugned resolution dated 27th December 1963 delegated the powers of the competent authority under sec. 50 to respondent No. 2 under sec. 321 clause (4) (iii) of the Act. Now respondent No. 3 was on account of his alleged absence from the Gram for a period of more than three consecutive months by a resolution of respondent No. 1 dated 26th March 1964 removed from membership of the Gram Panchayat in accordance with sec. 50(1)(a) of the Act and respondents Nos. 2 and 3 were accordingly informed. Respondent No. 3 on the 2nd April 1964 therefore applied to respondent No. 1 to refer the dispute under sec. 50(2) of the Act as to whether a vacancy had occurred. By another application dated 13th April 1964 respondent No. 3 asked respondent No. 1 to treat his application as an application to the competent authority. The said application was entertained by respondent No. 2 as Miscellaneous Application No. 1 of 1964-65. The petitioner raised two preliminary objections:-

(3.) Both these objections were overruled by respondent No. 2 and he came to the conclusion that according to the second resolution he was entitled to act as the competent authority by vitrue of delegation made in his favour and he therefore ordered that the matter should be further proceeded with. The petitioner has therefore filed the present petition to challenge the second resolution and for quashing the proceedings before respondent No. 2. Respondent No. 2 has filed the affidavit in reply to the petition and he has contended that the first resolution amounted to an illegal delegation and the second resolution was not by way of an amendment and it was legal and proper and he had therefore jurisdiction to deal with the matter.