DEVJEET Vs. GRAM PANCHAYAT PINGORA

JUDGEMENT

(1.) I have before me a writ petition under Art. 226 of the Constitution jointly filed by the three petitioners who were Panchas of the Gram Panchayat Pingora in the district of Bharatpur and by it they seek to question the validity of an order of the Sub-Divisional Officer, Bharatpur dated 25-4-67, by which he held that the petitioners had ceased to be the Panchas of the Gram Panchayat on account of their failure to attend five consecutive meetings of the Gram Panchayat. The relevant facts may shortly be stated as follows:

(2.) THE petitioners were elected as Panchas of the Gram Panchayat as a result of the elections held in 1964. According to them, the Sar Panch was inimically disposed towards them and he wanted to get rid of them as Panchas. THEy state that the Sar Panch, therefore, manipulated the proceedings of the Panchayat and eventually endeavoured to bring about the vacation of their seats on baseless grounds. According to them, they had never failed to attend five consecutive meetings of the Panchayat said to have been held on 9-3-65, 26-3-65, 9-4-65, 26 4-65 and 9-5-65. When they came to know on 18-5-65 that on 17-5-65 they had been ordered to be removed, they made an application before the Sub-Divisional Officer, Bharatpur on 18-5-65 purporting to be under rule 12 (5) (6) of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961, hereinafter to be referred as the "rules". THEy complained that they had attended the meetings of the Gram Panchayat on 19-3-65, 26-3-65 and 26-4 65 and yet it had been taken that they were absent at five consecutive meetings of the Panchayat so as to have vacated their seats. THEy also made grievance of the fact that on 9-4 65 there was no meeting of the Gram Panchayat though they were informed of such a meeting, In short, their case was that they had not failed to attend the five consecutive meetings of the Panchayat as mentioned by the Sarpanch. THEy, therefore, asked for a proper enquiry to be made and then declared that the petitioners had not vacated their seats. On this complaint the Sub-Divisional Officer held an enquiry and he came to the conclusion that the petitioners had, in fact, absented themselves at five consecutive meetings of the Panchayat and consequently they had ceased to be members of the Panchayat by virtue of the provisions of sec. 17 (2) of the Rajasthan Panchayat Act, 1953, hereinafter to be referred as the "act". During the course of enquiry before the Sub-Divisional Officer the petitioners approached the Collector for transferring their case to another officer as they had no faith in the Sub-Divisional Officer who was conducting the enquiry. No action, however, was taken by the Collector on the petitioner's application besides noting thereon that the Sub-Divisional Officer should show the papers to the Collector before passing the final orders.

(3.) FOR seeing whether a particular provision is mandatory or merely directory, the whole scope and purpose of the statute under consideration must be seen. Therefore, we have to bear in mind that the rules have been made only to carry out the purposes of the Act and the rule making authority cannot be presumed to have intended something in the rules that would go contrary to the provisions of the Act itself. Sec. 17 (2) of the Act lays down that the absence of a member of the panchayat at five consecutive meetings will result in the vacation of the seat by him. Therefore rule 12 cannot be so interpreted as to affect the legal result envisaged by S. 17 (2) of the Act as a result of the continued absence of a member for five consecutive meetings of the panchayat. In a case, therefore, where it cannot be said that five consecutive meetings were not held and also the member of the panchayat had absented himself from such meetings inspite of notice and he had also not given a written information for such absence in advance the rules cannot prevent the ensuing of the result namely, the vacation of the seat by the member concerned. If the rules were to provide anything which would prevent the result contemplated by the Act, then to that extent they might be said to have gone beyond the powers of the rule making authority, as the latter does not have the power to amend or modify the Act itself, though by the rules it can provide for things which have not been provided in the Act and that too has to be done for the purposes of carrying out of purposes of the statute and not more. The question of the vires of the rule 12 might fall to be considered in a case where there has been a complete failure to issue the notice contemplated by rule 12 after the fourth meeting but in the situation presented in the case I am not called upon to consider the question of the vires of the rule. As a matter of construction of the rule, in my view, the same is to be construed as a directory provision as that alone will be in keeping with the scheme of the Act as adumbrated in sec. 17 (2) thereof. If the rule is construed to be directory, as in my view it ought to be, then one has to see whether there was substantial compliance with the provisions of the rule. The underlying purpose of this provision for issuing of a notice after the fourth meeting is, to inform the mind of the member of the panchayat concerned, for it may well be that he was not quite conscious of the consequence that might result from his continued absence for a number of meetings. He is, therefore, to be made aware of the crucial meeting namely, the fifth meeting, so that he may fully realise that bis absence from the fifth meeting would result in his vacating the seat. I have, therefore, to see whether in the present case this purpose of the rule has been fulfilled. Copies of such notices issued to the three petitioner have been brought on the record. I may reproduce one of them viz. , notice Ex.-R/l hereunder - You are informed that the next meeting of the Panchayat, shall be held on 9-5-65 at the Panchayat Office, Patwar Ghar, Pingora at 10 a. m. You are, therefore, requested to find it convenient to attend the meeting at the correct time. Subject: That you had absented yourself from the four consecutive, meetings of the Gram Panchayat held on 9-3-65, 26-3-65, 9-4-65 and 26-4-65 and now the next meeting is fixed for 9-5-65. Your presence, is desirable. If you fail to be present, then action will be taken against you under rule 21 of the Rules of 1960 and section 17 (2) of the Panchayat Act and you will cease to be a Panch thereafter. " (Translation is mine)