M J VALSALAM Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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(1.) Petitioner is an elected member and the Vice President of the Kanjiramkulam Grama Panchayat, the 4th respondent. Smt. Sarasi Kuttappan, the 6th respondent herein, was the President of the above Panchayat. A no confidence motion was moved against the President of the Panchayat viz. the 6th respondent on 13.11.2001 and the majority of the members voted in favour of the motion and the motion was carried with the support of the majority members. Accordingly the 2nd respondent, the representative authorised by the Election Commission, who convened and presided over the above meeting, had sent the copy of the minutes of the meeting together with copy of the motion and the result of voting to the Government and also to the Election Commission as provided by law. On 15.11.2001 the 6th respondent filed a petition before the 1st respondent under S.191 of the Panchayat Raj Act (for short, the Act) for rescinding the result of the no confidence motion describing it as a resolution passed by the Panchayat. The 1st respondent by Ext. P3 order dt. 5.12.2001 set aside the proceedings of the meeting held on 13.11.01. The petitioner and some other members of the Board challenged Ext. P3 order before this court by filing O.P. 37349/01. The above O.P. was referred to the Division Bench. The Division Bench in Ext. P4 order dt. 14.12.2001 observed that the order passed by the 1st respondent was not observing the mandate in S.191(2) of the Act and held that in view of the no confidence motion being carried with majority of the members, the 6th respondent was not entitled to continue as the President. The matter when came up before the Division Bench again on 19.2.2002 passed Ext. P5 order treating Ext. P3 order passed by the Government only as a preliminary order and found that a final order has to be passed observing the provision under S.191(2) of the Act. Accordingly the matter was referred to the Ombudsman for orders under S.191 (2) of the Act. While the matter was pending before the Ombudsman, the present 6th respondent filed O.P. 9645/02. A Division Bench of this Court by Ext. R6(a) judgment dt. 17.7.02 did not interfere with the matter and observed that the reference shall be disposed of by the Ombudsman as expeditiously as possible. Thereafter the 1st respondent passed Ext. P6 order rescinding the result of the majority of the members of the Panchayat voting in favour of the no confidence motion. The above order, Ext. P6, is under challenge in this O.P.
(2.) Heard the learned counsel for the petitioner, the standing counsel for the Election Commission, the learned counsel for the 6th respondent and also the learned Government Pleader.
(3.) The important question for consideration is whether the State has the power or authority to rescind the result of the majority of the members voting in favour of a no confidence motion invoking S.191 of the Act. Admittedly a no confidence motion was moved against the President of the Panchayat viz. the 6th respondent in accordance with law and it was carried with majority members voting in favour of the no confidence motion. Admittedly the meeting held on 13.11.01 was presided over by the 2nd respondent, the representative authorised by the Election Commission, and the majority of the members voted in favour of the motion. When a motion is carried with majority members voting in favour of the motion, as per S.157(12) of the Act, the President would cease to hold office as the President of the Panchayat and the above seat shall stand vacant forthwith. The main argument advanced by the learned counsel for the petitioner was that S.191 of the Act would authorise the 1st respondent to cancel or vary a resolution passed or decision taken by the Panchayat on the grounds enumerated therein. It was further submitted that the announcement of the result of the no confidence motion was neither a resolution passed nor a decision taken by the Panchayat and S.191 could not have any application and as such the State was not entitled or empowered to interfere with the result of the voting in connection with the motion of no confidence against the 6th respondent and Ext. P6 order was passed without authority or jurisdiction. The learned counsel for the 6th respondent argued that it was a resolution which was passed by the Panchayat and as such the State had the power to cancel or set aside the above for non compliance of the statutory formalities. It was further submitted that the Division Bench had considered the same as a resolution and it was on that basis that a direction was issued to the State to refer the matter for the decision of the Ombudsman under S.191(2) of the Act and as such the above decision cannot be interfered by this court. Though such an argument was advanced, I do not think that the same can be accepted. It was not decided by the Division Bench that the result of a no confidence motion was a resolution passed by the Panchayat. In fact the Division Bench had left open that matter to be decided separately in Ext. P5 judgment. Ext. P5 judgment of the Division Bench reads:
"In this view of the matter we leave open the other contentions viz. whether the resolution passed in exercise of power under S.157 is revisable under S.191 and whether the power exercised is vitiated by legal malafides. We make it clear that we leave open these contentions of the petitioner at this stage. But however the impugned order made on 5.12.2001 would be treated as an interim order and would continue to operate till the final decision is taken by the Government under S.191 of the Act. We also direct that status quo regarding holding of the office of the President as on today will be maintained until the decision is taken by the Government."
Thus it is clear that the Division Bench has not considered the above aspect and the question whether the Government is competent to invoke S.191 and to set aside the result of the no confidence motion is left open to be decided and hence the above argument advanced by the learned counsel for the 6th respondent cannot be accepted. Further it is settled law that jurisdiction cannot be conferred by concession of parties and there cannot be any estoppel against statute. The question being as to whether S.191 confer jurisdiction to the State to set aside the result of the voting of a no confidence motion, parties cannot confer jurisdiction on the State. Hence the question of jurisdiction has to be decided on the basis of S.191 itself.;
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