KAN SINGH, J. -
(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.
In challenging the validity of the order of the Sub Divisional Officer it is contended by the petitioners that the provisions of rule 12 of the Rules were not complied with by the Panchayat inasmuch as after the fourth meeting a notice stating therein that inspite of due notice the petitioners had not attended the four immediately preceding meetings held on the various dates, so that in the event of their failure to attend the fifth meeting of which due notice shall be received by them, in due course their seats shall become vacant, had not been given. They maintained that the notice of the fifth meeting which was held to have been given by the Sub Divisional Officer did not conform to the requirements of R. 12 (1) as the two distinct acts, (i) informing them of their failure to attend the preceding four meetings and their liability to vacate the seats in the event of the failure to attend the next meeting; and (ii) the intimation for the fifth meeting were both rolled up in one notice. Such a composite notice, according to the petitioners, did not meet the requirements of the rule. The petitioners urged that the language of sub-rule (4) of rule 12 of the Rules leaves no manner of doubt that there have to be two notices as aforesaid and one composite notice cannot be held to be enough. In this behalf it is urged by the petitioners that a rule about incurring of disqualification was more or less a penal provision and was, therefore, to be construed strictly. Then the petitioners' next contention is that the proceedings of the so-called meetings were manipulated and the Sub-Divisional Officer was in error in holding otherwise and in this behalf according to the petitioners, he had overlooked the statements of Dhana and Latur Panches and that of the peon of the Panchayat.
The writ petition has been opposed by the Gram Panchayat. It is denied by it that the order passed by the Sub Divisional Officer suffers from any flaw so as to warrant any interference by this Court. As regards the provisions of rule 12 of the Rules it is submitted that these rules in so far as they relate to the issuing of two separate notices, if at all, after the fourth meeting of the Panchayat are only directory. If they are not so construed then the respondent maintains, they will go against the provisions of section 17 (2) of the Act. It is also denied that the proceedings of the Panchayat were manipulated in any manner and they have produced the notices duly signed by the petitioners for all the five meetings.
In order to appreciate the rival contentions of the learned counsel, I propose to read the relevant provisions of the Act and the Rules. "sec. 17. Vacation of seats and removal of Panch - (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (2) If any panch, Sarpanch or Up-sarpanch during the term of his office absents himself from five consecutive meetings of the Panchayat without giving information in writing to the Panchayet he shall cease to be such Panch, Sarpanch or Up-sarpanch and his seat shall become vacant.
Rule 12 of the Rules runs as under - "r. 12. Vacation for absence from meetings.-In the case of a Panch, Sarpanch or Up-sarpanch of a Panchayat becoming liable or probably liable for absence from meetings under sub section (2) of section 17, the following procedure shall be observed namely: - (1) If such Panch, Sarpanch Up-sarpanch hereafter referred to as the absentee so absents himself from four consecutive meetings of the Panchayat the Sarpanch, or in his absence, the Up-Sarpanch or any other presiding Panch, shall give to the absentee a notice in writing as soon as may be after the close of the fourth meeting and before the fifth meeting takes place, stating that he has inspite of due notice, not attended four immediately preceding meetings held on the dates to be stated in the notice and that his seat shall become vacant if he does not attend the fifth meeting of which due notice shall be received by him in due course of time. (4) If thereafter the absentee fails to attend the fifth meeting of the Panchayat, the matter shall be placed before the Panchayat at the meeting and such Panchayat or if it is satisfied that the notice referred to in clause (i) and the notice of the date of the fifth meeting as aforesaid were duly served on the absentee, shall declare that his seat has become vacant and report it forthwith to the Collector. (5) If any dispute arises as to whether a seat has become vacant as aforesaid, the absentee or the Panchayat may refer the dispute to the Sub-Divisional Officer having jurisdiction for adjudication not later than thirty days from the date on which the seat is declared vacant by the Panchayat. (6) The Sub-Divisional Officer shall thereupon require into the matter, call for the necessary records, hear the parties, if necessary, and decide the question and his decision shall be final.
A perusal of sec 17 shows that whereas under sub-secs. (1) (3) and (4), specific order of the State Government, or its delegate will be necessary before a member of the Panchayat can be said to have vacated the seat, under sub-sec. (2) no such positive action is contemplated. Sub sec. (2) lays down the conditions under which a Panch, Sarpanch or Up-sarpanch shall be taken to have vacated his seat automatically. The conditions are: (1) failure to attend five consecutive meetings of the panchayat; (2) this should be without giving of any information in writing to the panchayat. It is on the coming into existence of these two conditions that a member of the panchayat automatically quits his office under sub-sec. (2) of sec. 17 of the Act. The first condition clearly implies that all the five consecutive meetings, that is, they must be convened by competent authority, the requisite notice whereof must be issued and it must be received or otherwise taken to have been served on a member of the panchayat. It is conceivable that the concerning Panch, Up-sarpanch or Sarpanch may dispute that the conditions envisaged by sec. 17 (2) of the Act had not come into existence and, therefore, he should not be taken to have vacated the seat. The dispute may relate either to the validity of the meetings themselves on any of the grounds on which the validity of a meeting may be questioned or it may relate to the service of the notice of such meeting on the concerning Panch, Sarpanch or Up-sarpanch, as the case may be; or lastly he might raise a dispute about his having informed the panchayat in writing about the absence and, thus about the non-existence of any of the conditions for vacation of the office under this provision.
Rule 12 has also created a forum or a tribunal for the resolving of such a dispute. Sub-rule (5) provides that if any dispute arises whether a seat has become vacant the absentee or the panchayat may refer the dispute to the Sub-Divisional Officer having jurisdiction for adjudication. This has to be done within a period of 30 days from the date on which the seat is declared vacant. The Sub Divisional Officer is then to make an enquiry into the matter. He is to call for the necessary records, hear the parties, if necessary, and decide the question. The copies of the final orders made by the Sub Divisional Officer have to be sent to the Collector and the panchayat concerned.
The crux of the matter, so far as the provisions relating to the giving of a notice after the fourth meeting is concerned, is whether these provisions are to be construed as mandatory provisions or they are merely directory, as contended by learned counsel for the respondents. Shri G. M. Lodha has contended that these provisions are clearly mandatory in nature as they relate to the expulsion of an elected member of the Gram Panchayat. He, therefore, submits that if, instead of two notices as required by rule 12 of the Rules, the. panchayat gives only one composite notice then that cannot be fulfilment of the requirement of law. No direct authority bearing on the interpretation of rule 12 of the Rules has been cited before me, but Shri Lodha draws analogy from certain decided cases of this Court. He has referred me to Vishwanath vs. Pt. Jhamanlal (1), Subh Karan vs. State of Raj (2) Deo Dutt Sharma vs. Collector, Ajmer (3) and Pukhraj vs. State of Rajasthan (4 ).
In Vishwanath vs. Pt. Jhamanlal (1) the question that arose for considera-tion was whether for the purposes of election of a chairman of a Town Municipality under the Rajasthan Town Municipalities Act, 1951, any officer other than the District Magistrate could have called the meeting of the Municipal Board, In construing the implications of the rules regarding the election of chairman the learned Judges observed that there was no provision by which the District Magistrate could delegate his functions of calling the meeting to anybody else. Therefore in a case where the meeting is not called by the District Magistrate but it is so called by some other officer, then it is not a meeting within the meaning of the rules. The learned Judge observed that rule 3 of the Rules in that regard was mandatory. They repelled the argument put forth before them that as all the members of the Municipality had assembled at the meeting pursuant to the notice, the irregularity, if any, in the convening of the meeting should be held curable. With all respect this case does not lend much help for construing the provisions of rule 12 of the Rules.
In Subh Karan vs. State of Rajasthan (2) the point that came up for consideration was whether the provisions of sec. 26 (3) of the Rajasthan Town Municipalities Act wherein they provided for notices to every member was mandatory. The learned Judges held that this provision was mandatory. They also added that apart from the express provision contained in the section it was also the general law that adequate notice of the meetings of elected or other properly constituted bodies must be given to every member of that body and the failure to give the notice to one of the members shall be fatal to the validity of the meeting and it would invalidate the proceedings as well. The learned Judges referred to a number of English cases in support of their conclusion, on the statement of the position generally, apart from the provisions of the statute that they were examining. Shri Lodha has invited my attention to the several passages extracted from the English cases as appear in this case. He referred in particular to the observations of Lord Denman C. J , occurring at page 240 of the judgment. It was a case where a member had even told the council in a general way that summonses need not be sent to him and yet it was held that the giving of a notice on the part of the council was necessary and compliance with that provision cannot be waived. Here again I have to say with all respect that the matter before me falls to be considered on different considerations which will be clear from what I am going to say in the course of my judgment.
In Deo Dutt Sharma vs. Collector, Ajmer (3) again, the provisions of the Rajasthan Municipalities Act fell for consideration. It was a case of a member of the Municipality incurring disqualification under sec. 26 (xiv) on account of his not having paid the arrears of tax or other dues. It was held that a member who suffers from such disqualification is not removed from office automatically under the scheme of the Act. Removal was in that case a penalty provided by the statute. Dave J. , as he then was, made a reservation in that judgment in the following terms: "this does not, however, mean that a member who himself suffers from disqualification is as good a member as the one who suffers from no disqualification so long as he is not actually removed from his office. A member who incurs this disqualification loses certain rights during the period he suffers from disqualification. " His Lordship was dealing with a case of the incurring of certain disqualifications which would be in the nature of a stigma on a member as would warrant an action in the nature of penalty against him. Sec. 17 (2) of the Act, in my view, is not in the nature of a disqualification of the kind that came to be considered in Deo Dutt Sharma's case (3 ). At any rate, that case does not afford guidance for interpreting the provisions of sec. 17 (2) of the Act or rule 12 of the Rules for that matter.
Pukhraj vs. State of Rajasthan (4) is a case under sec. 17 (4) of the Rajasthan Panchayats and Nyaya Panchayats Act, and as I have already observed, this provision requires a positive action on the part of the State Government or its delegate. Therefore, the provisions of sec. 17 (4) cannot directly help the interpretation of the provisions of sec. 17 (2) of the Act or those of the rules.
(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)
A perusal of this notice shows that it was clearly brought to the notice of the petitioner that he had been absent at the four consecutive meetings of he Panchayat and that his presence at the next meeting was desirable. He was also told that in the event of his absence at the ensuing meeting he would cease to be a Panch. Then the meeting was fixed for 9 5 65. Therefore, even though there was no literal compliance with the provisions of rule 12 of the Rules in that instead of two notices that are contemplated under the rules after the fourth meeting only one composite notice was given, yet, in my view, it was sufficient to fulfil the underlying purpose of the rule which was to make the Panch aware of the consequences of his absence on the next meeting as he had already absented himself from four consecutive meetings previously.
Shri Lodha argued that the rule should be construed strictly as it would result in the expulsion of the member and the action that would follow against the Panch was penal in nature and, therefore, no departure from the rule should be countenanced. He further urged that the fifth meeting in the absence of the two separate notices should be taken to be no meeting in the eye of law. This, in my view, will not be the right view to take. There is no dispute that the fifth meeting was properly convened. It was convened after the requisite notice for the stated period. The members of the Panchayat concerned were properly notified and, therefore, if inspite of that it were to be held that the fifth meeting was not legal or valid, then it might affect the interests of other innocent persons as well. In other words, whatever other proceedings that the Panchayat may have taken, such as, imposing of fines, selling of lands and the like, all such proceedings stand to be vitiated. According to the well established canons of interpretation such a contingency is to be avoided so far as it could be. I may refer to the following passage occurring in "maxwell on Interpretation of Statutes" 11th Edition page 364: "it has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice; and, when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be re garded. The general rule is that an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled substantially. "
As pointed out by me above, holding the rule to be merely directory will not only be consonant with the underlying purposes of sec. 17 (2) of "the Act, but will also avoid injury to innocent persons. At the same time, this will promote the real aim underlying the rule namely, to inform the mind of a member of the panchayat concerned before-hand that his failurer to attend the next meeting would entail the consequence of the vacation of the seat by him so that he may act accordingly. I therefore, hold that the composite notice given by the Panchayat fulfilled, in substance, the requirements of rule 12 of the Rules.
Apart from this, a provision for automatic vacation of a seat by an elected member and his continued absence for several meetings is made to ensure that the constituency represented by the member does hot remain unrepresented in the carrying on of the local self Government. Vacation is brought about by the member's own action. He is, by bis callous indifference, not discharging his public duty towards his own constituency and the voters of the area which he had undertaken by his voluntarily offering himself as a candidate. The vacation of seat in such circumstances has been provided to give fresh opportunity to voters to elect another representative. This cannot justly be compared with a penal provision where action is required to be taken against a member by some other authority. Similar provisions exist elsewhere for members of Parliament, Legislative Assemblies and Municipal Bodies. It is, therefore, idle to contend that this is expulsion in the nature of penalty for which some other agency is required to take action.
I may then deal with the other contention of Shri Lodha. He submitted that a perusal of the statements of the two Panchas Dhana and Latur as also that of the peon of the Panchayat shows that meetings had not, taken place on 9-5-65 and 26-4-65 and the Sub-Divisional Officer was in error in holding otherwise. He also submitted that the proceedings of the Panchayat have been manipulated by Sarpanch and his followers. It is sufficient to say that these are all questions of fact and when a Tribunal created by the statute has made an enquiry and then on the evidence available has come to a finding that the relevant meetings were held and that there was no manipulation of the kind alleged by the petitioners, there is no case for interference in the exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution. I may also mention that even though the petitioners approached the Collector for transferring the enquiry that was being conducted by the Sub-Divisional Officer, to another Officer, as the petitioners had no faith in the Sub-Divisional Officer, but in the writ petition they have not made any averment of mala fides or bias on the part of the Sub-Divisional Officer. Therefore, nothing turns on the petitioners' approaching the Collector for transferring the proceedings from the Sub-Divisional Officer. When such proceedings were not transferred, I am not going into the question whether the Collector had any such power of transfer, as I am not called upon to consider that aspect of the matter. Therefore, I do not find any substance in the other contention of the learned counsel either.