SARJOO PROSAD C. , J. -
(1.)THIS appeal is directed against the judgment of Jagat Narain J. , sitting single, dated 8th September, 1960. By the judgment in question the learned Judge dismissed an application of the appellant under Art. 226 of the Constitution.
(2.)THE appellant was a Panch of Dusarna Village Panchayat. On the 15th of June, 1958, the said Panchayat passed a resolution that in future meetings of the Panchayat would be held on the 15th and 30th of every month at 12 noon. Evidently this resolution was passed with a view to obviate the necessity of issuing notices every time that a meeting had to be called and by virtue of this resolution both the date as well as the time of the meeting were definitely fixed. THE resolution also fulfilled the requirements of sec. 21 (2) of the Rajasthan Panchayat Act, 1953 (Act No. XXI of 1953 - hereinafter called "the Act" ). This provision requires that - "the Sarpanch shall hold a meeting of the Panchayat Panchayat for the disposal of its business as often as may be necessary and at least once a fortnight at some place within the Circle. " THE appellant was admittedly present at that meeting and accepted the resolution. THEreafter several meetings of the Panchayat were held on the relevant dates which also appear to have been attended by the appellant; but on account of subsequent default in attendance at five consecutive meetings - a default for which no satisfactory explanation has been placed on record - on the 30th of November, 1959, the Panchayat passed a resolution to the effect that the appellant had ceased to be a Panch by operation of sec. 17 (2) of the Act. After the passing of this resolution, the Sarpanch and the other Panchas physically excluded the appellant from his attendance at the meeting; nor did they permit him to attend even the future meetings of the Panchayat. THE appellant lodged a complaint with the Chief Panchayat Officer through registered post; but this Officer did not take any action in the matter. He then presented a writ petition on the 12th of January, 1960, which, after a rule nisi, was eventually rejected by the learned Judge by the order in question. THE Sarpanch of the Panchayat contested the writ petition and is also represented here as a respondent.
Mr. Jethmal Acharya, who appears for the appellant, has raised three points in support of the appeal. In the first place he contends that it was necessary under sec. 21 (2) of the Act, read with Rule 4 (2) of the Rules framed thereunder, that the Sarpanch should communicate the date, time and place of every meeting to the members of the Panchayat at least 48 hours before the meeting. The argument of the learned counsel is that every time that a meeting had to be summoned, it was the duty of the Sarpanch to send the above communication to the panchayat members notifying the meeting; that not having been done, any meeting held without due compliance with the above provisions was illegal; and non-attendance at any such meeting did not operate to create any disability under sec. 17 (2) of the Act. In our opinion, this point is without substance. All that the law requires is that the date, time and place of the meeting should be communicated or known to the member of the panchayat at least 48 hours before the meeting. In this case by a regular resolution passed on the 15th June, 1958, at a meeting at which the appellant was himself present, it was resolved that the further meetings of the panchayat should be held on the 15th and 30th of every month at 12 noon. Therefore, the appellant had full information of the dates and hour of the meetings. There is no suggestion that the meetings were held at some obscure place which the appellant could not attend. In our opinion, therefore, there was due compliance with the Statute and the Rule, and at any rate the appellant could not be entitled to claim interference by a high prerogative writ on that account. It is not disputed that after the resolution he attended various meetings of the Panchayat without any such particular notice having been issued for the purpose, as contended by him. It is submitted by the learned counsel that the notice is given not merely for the benefit of the member but also in the interest of the public, and, therefore, even if he had personal knowledge of the meetings, such a notice was necessary. He has referred to some cases on the point, one of them being the decision of this Court in Subh Karan vs. The State of Rajasthan (1), where it was observed that under the general law adequate notice of elected or other properly constituted bodies must be given to every member of that body and the failure to give notice of a meeting to one of the members was fatal to the validity of the meeting and invalidated its proceedings. The facts, however, were entirely different and could have no application to the circumstances of the instant case. There the requisition for a meeting was made on the 3rd of April, 1958, and the Chairman who was bound to call a meeting for 18th April, 1958, at the latest, did not issue a notice for holding a meeting by the 14th of April, 1958; which according to section 26 (3) of the Rajasthan Town Municipalities Act, (No. XXIII of 1951) was the latest date by which such a notice should have been issued. In fact the notice was not issued even till the 18th of April, 1958. In these circumstances it was held that the meeting was illegal. We do not see how in the present case Mr. Acharya can call in aid this decision, he having all the time notice of the respective dates of these meetings which he could have easily attended as he attended some of the previous meetings after the passing of the resolution of the 15. 6. 1958. The appellant cannot fall back upon some abstract doctrine of notice.
The second contention of Mr. Acharya is that in any case there was no quorum at the meetings from which the appellant is said to have absented himself. The learned counsel urges that if there was no quorum there could be no meeting and as such there was no absence from any meeting for which any disqualification could be attached to the appellant. Sec. 21 (4) of the Act requires that one-third of the whole number of Panchas, including the Sarpanch, shall form the quorum for a meeting of the Panchayat. Admittedly the total number of members of this Panchayat was 9 in addition to the Sarpanch. Therefore, the quorum would be constituted of at least four members. It is not disputed that actually on the dates in question there was no quorum, and, therefore, the meetings could not be held or any business transacted. We, however, think that mere absence of quorum does not mean that there was no meeting, If a meeting is summoned for a particular date and the members concerned arrive to attend the meeting, the meeting evidently takes place, though no business can be transacted at the meeting for lack of quorum. In such cases usually the meeting has to be adjourned to some other date. It cannot be, therefore, argued that merely because there was no quorum, there could be no meeting at all, thereby dispensing with the presence of the members altogether. If this plea were available then every member could say that he need not attend a particular meeting and then it may inevitably lead to lack of quorum altogether. We think, therefore, that although the quorum could not be attained on the dates in question for continuing the normal transactions at those meetings, there were meetings of the Panchayat on the relevant dates and the absence on those dates of the appellant would entail the disqualification imposed by the law. There are of course no relevant rules framed on the point under the Act; but reference has been made to an analogous provision of the Rajasthan Town Municipalities Act, 1951, where under sec. 26 (7) it is laid down that if less than one-third of the whole number of members be present at a meeting at any time from the beginning to the end thereof, the presiding authority shall, after waiting for not less than fifteen and not more than thirty minutes adjourn the meeting to such hour on the following or some other future day as he may reasonably fix. We need not refer to the other parts of the provision. It is quite clear, therefore, that even though there may be no quorum, there is a meeting; but for purposes of transacting business nothing can be done in the absence of a quorum. In our opinion, this point also does not bear scrutiny.
The next and more serious argument which has been presented to us by Mr. Acharya is in regard to the interpretation of sec. 17 of the Act itself and in particular of sub-secs. (2), (4) and (5) of that section. Mr. Acharya contends that the learned Judge was in error in holding that there was an automatic disqualification incurred by the appellant owing to his absence from five consecutive meetings of the Panchayat and that it was not open to the Panchayat or the Sarpanch of the Panchayat to declare that the appellant had incurred such a disqualification. That could only be done by the State Government after giving a reasonable opportunity to the appellant of being heard in the matter. Admittedly in this case no such opportunity was given. The appellant, therefore, contends that whole procedure adopted by the Panchayat was illegal.
Sec. 17 is as follows: - "17. Vacation of seats by and removal of Panchas : - (1) (a) If any Panch, Sarpanch or Upsarpanch, who is not qualified for election or appointment as such under this Act, has been elected or appointed to a Panchayat, or (b) if any panch, Sarpanch or Upsarpanch after having been elected or appointed as aforesaid, becomes disqualified during the term of his office for such election or appointment, his seat shall be declared by the State Government, after giving him an opportunity of being heard, to have become vacant. (2) If any Panch, Sarpanch or, Upsarpanch during the term of his office, absents himself from five consecutive meetings of the Panchayat without giving information in writing to the Panchayat he shall cease to be such Panch, Sarpanch, or Upsarpanch and his seat shall become vacant. (3) If any Panch or Sarpanch fails to make the prescribed oath or affirmation of his office within three months from the date of notification under sec. 14, his seat shall be declared by the State Government to have become vacant. (4) The State Government may by order in writing and after giving him an opportunity of being heard and making such inquiry as may be deemed necessary, remove any Panch, Sarpanch, or Upsarpanch, who - (a) refuses to act or becomes incapable of acting as such, or (b) in the opinion of the State Government has been guilty of misconduct or neglect in the discharge of his duties or of any disgraceful conduct. (5) The decision of the State Government on any matter arising under this section shall be final and shall not be liable to be questioned in any court of law. " Let us, therefore, scan the various provisions of the section itself to see what the section provides. Now sub sec. (1) clearly provides that if a Panch, Sarpanch or Upsarpanch has become disqualified during the term of his office for such election or appointment his seat shall be declared by the State Government to have become vacant, after giving him an opportunity of being heard. In sub-sec. (3) also it is provided that if a panch or Sarpanch fails to make the prescribed oath within three months of the date of the notification his seat shall be declared by the State Government to have become vacant. Then in sub-sec. (4) it is provided that the State Government may, by an order in writing and after giving him an opportunity of being heard and making enquiry which may be deemed necessary, remove any Panch or Sarpanch or Upsarpanch who, refuses to act or becomes incapable of acting as such, or in the opinion of the State Government has been guilty of misconduct or neglect in the discharge of his duties or of any disgraceful conduct. Under all these sub-sections it is significant to notice that the authority is vested in the State Government to take action alter giving an opportunity to the person concerned of being heard in the matter. Unfortunately for the appellant the language of sub-sec. (2) is otherwise. In that sub-section there is no reference whatsover to any action being taken by the Government. All that it says is that if any Panch, Sarpanch, or Upsarpanch during the term of his office absents himself from five consecutive meetings of the Panchayat without giving information in writing to the Panchayat, he shall cease to be a Panch, Sarpanch or Upsarpanch and his seat shall become vacant. The Government is not required to take any action on the specific terms of sub-sec. (2), as it is required to take action under sub-sections to which we have referred. The disqualification incurred here, provided the conditions exist, is automatic and will come to operate as soon as the disqualification is incurred. Mr. Acharya, however, contends that sub-sec. (2) should be deemed to be conditioned by sub-sec. (4), because the language of sub-sec. (4) is that if a Panch refuses to act or becomes incapable of acting or is guilty of neglect in the discharge of his duties the State Government may remove him after giving him an opportunity of being heard and making necessary inquiry. He has referred to certain quotations from well-known jurists to explain the concept of negligence in the discharge of duty which, according to him should include absence from meetings. It is not necessary to go into those citations for the purpose of determining the language of the provisions which we have to construe. It is a well-known principle of construction that the section should be construed as a whole. If we accept the contention of Mr. Acharya the effect of that would be that sub-sec. (2) would become almost redundant. In that case sub-sec. (4) would be quite enough to cover non-attendance at meetings or repeated absence therefrom as neglect in the discharge of duties or refusal to act by a Panch, Sarpanch or Upsarpanch as the case may be, thereby enabling the Government to take section. In our opinion, therefore when the Legislature intended to introduce sub-sec. (2) in sec. 17 it intended in particular to lay stress upon the attendance of the Panch, Sarpanch or Upsarpanch at the meetings of the Panchayat and failure to attend at five consecutive meetings entailed the penalty of automatic termination of his membership or of his office, and his seat becoming vacant. When there is a specific provision in the section it is not necessary to go to sub-sec. (4) which deals inter alia in general with cases of refusal to act or neglect in the discharge of duties as given in the section. The specific provision as to absence from meetings cannot be taken to be conditioned by the general provision and the former should prevail over the latter. We, therefore, feel that in a case of this nature where there has been absence from five consecutive meetings, the learned Judge was right in holding that the disqualification incurred was automatic and nothing further appeared to be done unless he came within some of the exceptions pointed put in the section.
Mr. Acharya submits that such an interpretation would lead to various anomalies; for instance, a man may be present and may be wrongly marked as absent by an officer of the panchayat; he may be also reasonably unable to attend consecutive meetings of the panchayat and yet he may be unable to communicate to the Panchayat of his forced absence at those meetings; he may also have applied or given information in writing to the Panchayat to excuse his absence and even then the Panchayat may have taken no notice of it. In all such cases, the learned counsel urges, if he is denied an opportunity of being heard, he has no remedy and, therefore, the section could not have contemplated such a situation. Unfortunately the contention ignores the provisions of sub-sec. (5) of the section. Sub-sec. (5) is a provision which would cover such cases of dispute between the person affected on the one hand and the Panchayat or the Sarpanch on the other. Sub-sec. (5) says that the decision of the State Government on any matter arising under the section shall be final and shall not be liable to question in any Court. The words "any matter" refer to all the sub-sections of sec. 17. This section, therefore, does contemnplate that in case of any such dispute as is alleged by Mr. Acharya with reference to the disqualification under sub-sec. (2) of the section, it is open to him to move the Government to decide the matter under sub-sec. (5) after making relevant enquiries and the decision of the Government on the point would be final; otherwise the disqualification would automatically operate as we have already observed. Mr. Acharya has not been able to point out to us that there was any such dispute in the present case or that he had any legitimate excuse for not attending five consecutive meetings or giving information in writing to the Panchayat about his non-attendance.
The view that we have taken of the interpretation of sub-sec. (2) of sec. 17 finds support from a decision of this Court in Vishwanath Vs. The State (2), where an analogous provision of sec. 11 (3) (c) of the Rajasthan Town Municipalities Act, 1951, came in for consideration. Sec. 12 (3) (c) of that Act provides that in case a member without taking leave absented himself from the requisite number of consecutive meetings, he was disabled from continuing as a member and his seat was deemed to have become vacant. In interpreting that provision it was held that the disqualification under the section was automatic inasmuch as it provided that if a member was absent for four consecutive months he should be disabled from continuing to be a member and his seat should be deemed to have become vacant. There was no provision any where in the Act for waiving this disqualification once it is incurred, even if the absence was due to some misapprehension. Mr. Acharya points out that in the Town Municipalities Act in question there was no provision like sub-sec. (4) of sec. 17, and, therefore, the analogy of the decision in that case should not be extended to the present case. We think that the contention is unsound. Analogous provision in the Town Municipalities Act to sec. 17 (4) of the present Act appears to be contained in sec. 14 of the Municipalities Act so that before an order of removal could be passed by the Government, the Government had to make such enquiry as it deemed necessary if the member was guilty of misconduct or any disgraceful conduct in the discharge of his duty or had become incapable of performing his duties as a member. Mr. Acharya further refers to the amendment of the provisions in the new Rajasthan Municipalities Act (Act No. 38 of 1859) where under sec. 63 (1) (a) a member may be removed if he absents himself from the meetings of the Board for more than three consecutive months or three consecutive ordinary general meetings, whichever is the longer period without leave of the Board. He contends that this amendment was introduced with a view to remove the anomaly created by the decision in the above case, and as such no reliance should be placed on the decision in question. The fact that the Legislature at a later stage thought it proper to amend a certain provision of the law does not mean that the decision in question was erroneous. With great respect we are inclined to agree with the view expressed in that decision about the analogous provision of the Town Municipalities Act and the said decision has thrown a good deal of light on the interpretation of the provisions of sec. 17 of the present Act. On the whole, therefore, we are satisfied that the view taken by the learned Judge on the interpretation of sec. 17 (2) of the Act is correct and that the appellant did incur the disqualification in question on account of which automatically his membership of the Panchayat ceased.
We accordingly affirm the order of the learned Judge and dismiss this appeal with costs. .