- (1.) BY this writ petition under Art. 226 of the Constitution of India, the petitioner has prayed for the issuance of a writ of mandamus or a writ of prohibition against the respondents preventing them from issuing the suspension order against the petitioner. However, during the pendency of the writ petition, it was brought to the notice that the suspension order has been passed and the writ petition was amended. It was prayed that the suspension order (Annexure-AA) dated August 18, 1983 may be set aside.
(2.) THE petitioner has taken number of grounds in his writ petition including the ground of malafides. On behalf of the respondents, a reply to the writ petition was filed on September 26, 1983. It was originally submitted by the respondents that the petitioner performed his duties strictly within the four corners of law laid down by the Statute. However, on an application for amendment being filed, the amendment was allowed and it was submitted by the respondents that it is not admitted that the petitioner performed his duties strictly within the four corners of law laid down by the Statute. It was submitted by the respondents that the Block Development Officer, Panchayat Samiti, Makrana addressed a complaint to the Collector, Nagaur, the copy of the said complaint has been produced by the respondents marked as Ex. R. l. On receipt of the complaint by the Collector, Nagaur, he forwarded it to the State Govt. and the State Govt. ordered on October 21, 1982 to the Collector, Nagaur to have a preliminary enquiry in this regard. THEreafter, the State Govt. issued a reminder in this regard on November 27, 1982. THE Collector, Nagaur directed the Deputy District Development Officer, Nagaur to submit a preliminary enquiry report in this regard. THE preliminary enquiry report was forwarded by the Collector, Nagaur to the State Govt. on November 19, 1982. On January 1, 1983, the State Govt. issued a show cause notice to the petitioner containing Memorandum of charges and allegations (Ex. R. 6 & 6 A ). THE petitioner was directed to submit his reply within a fortnight. It will not be out of place to mention here that in this very notice, it has been mentioned that the State Govt. desires that the report should be submitted at the earliest and so this notice is being issued. Shri Shish Ram Ola, Hon'ble Minister for Panchayat Raj and Gramin Vikas, Rajasthan Jaipur passed the order (Ex. R. 7) on the Office File and on the basis of the said order, the order of suspension (Ex. R 8.-Annexure-AA) was issued. Originally, the petitioner impleaded respondents No. 3 to 9 as parties. However, the petitioner made a prayer to the Court to delete the names of respondents No. 3 to 9 and the prayer made on behalf of the petitioner was accepted. The petitioner has taken the stand that there should be a clarity in the mind of those who have been restored with the power under particular Statute or instrument and should exercise the powers vested in them bonafidely, fairly and in a just and proper way. The petitioner has submitted that the institution of the Government is acting malafidely (malice of law and malice of facts) since the inception of Panchayat and he is one of the victims of those who want to exercise their power through the instrument of the Government for their benefit. He has submitted that earlier, he had to file number of writ petitions against the Government. He has given the list of those writ petitions in Ground No. (n) of the writ petition and has tried to show that right from the inception i. e. from the year i955, when the petitioner is said to have started his political carrier, un-abetting actions are taken by the respondents alongwith other persons not to allow him to work smoothly on the elected post. He has also submitted that these writ petitions have been decided in his favour and all the writ petitions related to the Panchayat and Panchayat Samities, He has further submitted that the writ petitions were mostly filed against no confidence motion against the petitioner, suspension and removal of the petitioner from the various posts. In reply to Ground (n) of the writ petition, the respondents have submitted that the past history or previous writ petitions referred to by the petitioner in this sub-para is of no relevance. Thus, the respondents have not found it convenient to deny the past history which has been referred to by the petitioner in Ground (n) of the writ petition. I have heard Mr. M. D. Purohit, learned counsel for the petitioner and Mr. H. N. Calla, learned Government Advocate. Mr. M. D. Purohit, learned counsel for the petitioner has vehemently contended with all force at his command that the past history is only relevant as it lays down the foundation for the malafide actions which has been taken against the petitioner on political counts. Mr. H. N. Calla, learned Government Advocate has not said anything in addition to what he has submitted in the reply. I am not in a position to accept the contention of Mr. M. D. Purohit, learned counsel for the petitioner in toto. Past history may be relevant factor to show the motive behind any action which has been taken against the petitioner and it may used by aid to the Court in drawing any inference about the conduct of the opposite parties. However, it cannot be said that the past history should be considered sufficient for laying down the foundation of malice in law and malice in fact. Learned counsel for the petitioner submits that in spite of the orders of the Court, no record is made available to the Court by the respondents. He submits that directions were given by the Court to keep the record present including the proceedings of the Panchayat and Zila Parishad and the record of the State Govt but the Govt. Advocate has failed to comply with the order of the Court. Mr. H N. Calla, learned Government Advocate confronted with the situation submits that the original record was brought by the Officer Incharge and he took away the record. He submits that he has intimated the Officer Incharge to bring the record and the record will be produced before the Court whenever it is received Learned counsel for the petitioner has invited my attention to the letter (Annexure-2k) dated January 15, 1983 addressed by the petitioner to the Director, Community Development and Panchayat Raj. Govt. of Raj , Jaipur whereby the petitioner has lodged a complaint against the Block Development Officer and has submitted that in the past, he has lodged number of complaints against the Block Development Officer but the Govt. is not enquiring into any of the complaints. He has further intimated the Director that the Block Development Officer is exercising wholly practically all the powers of the Panchayat Samiti and is conducting in a way that there is none to lookafter his work. He has also complained to the Director that the Block Development Officer is not taking care of the Pradhan and the elected Pancha-yats. He has given some instances and has submitted to the Director that every act is done on political level and the petitioner is not allowed to perform his duties. He has also referred about some communal fictions. Learned counsel for the petitioner submits that this letter was submitted in the month of January, 1983 and the impugned order was passed in the month of August, 1983. He wants to emphasize the existence of political vendate against the petitioner. Mr. H. N. Calla, learned Government Advocate has not addressed at all on this point. Mr. M. D. Purohit, learned counsel for the petitioner has invited my attention to the letter (Annexure-2l) dated March 5, 1983 whereby the Collector addressed to the Director that he requested vide letter dated February 27, 1983 not to convene the meeting looking to the tense situation as there is every likelihood of breach of peace and it will be very difficult for the administration to maintain the law and order. Thereafter, directions were issued that in spite of Chandaliya, the meeting should be convened at Manada. It has also been reported in the letter (Annexure-2l) that during the visit of Hon'ble Chief Minister to Kuchaman City on February 26, 1983, the M. L. A's and some Sarpanchas requested the Chief Minister that looking to the tense situation, the meeting of the Panchayat Samiti should not be held at Manada. The M. L. A's have also requested to the Chief Minister that during the session of Assembly, no meeting should be held. The Collector has also stated that he contacted the Pradhan and requested him to convene the meetings of the Panchayat Samiti only at Panchayat Samiti Headquarters and not at Panchayat Head-quarters. The petitioner intimated the Collector that it is within his jurisdiction to convene the meeting and he will convene the meeting only wherever he likes and the Collector should not interfere in the matter. The Collector exercies his administrative powers and postponed the meeting which was called on February 28, 1983. Again, the meeting was convened on March 5, 1983, which was also postponed by the Collector. The Collector requested the Stale Govt. that directions should be issued to the Pradhan and the Panchayat Samiti not to convene the meeting at the Panchayat Headquarters but it should be convened only at the Panchayat Samiti Headquarters. Thereafter, on March 5, 1982, the petitioner addressed a letter to the S. H. O. , Police Station, Makrana and requested him to intimate whether any of the villages in Panchayat Samiti area are disturbed or not ? He also wanted to know from the S HO. whether village Manada and Chandaliya are disturbed villages or not. He also wanted to know whether Makrana City is a disturbed area or not. The S H. O intimated that none of them is or was a disturbed area and the life is normal there. Mr. M. D. Purohit, learned counsel for the petitioner submits that on a reading of letters Annexures 2l & 2m together, it reveals that on the one hand, the Collector has postponed the meeting on the ground that there is every likelihood of breach of peace and on the other hand, the S. H. O. has written that there is no disturbance in any of the villages and the life is normal. Learned counsel of the petitioner has invited my attention to the News-Paper (Daily Prantdoot) (Annexure-3) wherein the interview of the petitioner has been published. The petitioner has alleged that the Collector is putting hinderances in the development of the Panchayat Samiti. Mr. Purohit has further invited my attention to the News-Paper (Daily Prantdoot) (Annexure-4) and has submitted that the apprehension that the petitioner will be suspended has also been published in the News-paper. Learned counsel has further invited my attention to the letter (Annexure-5) dated December 14, 1982 and has submitted that the petitioner wrote to the Minister concerned that the action of the Collector is malafide and an independent enquiry should be conducted into the conduct of the petitioner as well as of the Collector. Mr. Purohit has also invited my attention to Annexure-7 whereby the petitioner has alleged that the Collector is participating in political pilgrims actively and he is bent upon to creat impediment in the development of the Panchayat Samiti. He has also produced Annexures-8,9,10,11,12,13, and 14, and has submitted that confrontation between the petitioner and the administration started more than a year back and from time to time. News-papers have reported that the local administration is acting at the instance of the politicians. It is surprising that a vague reply has been given in paras 20,21, and 22 of the reply to the writ petition and no definite averments have been made controverting these facts. Learned counsel for the petitioner has submitted that it is not necessary to implead the persons against whom the allegations have been made. He has invited my attention to State of Punjab vs. Ramji Lal (1), wherein it was observed : " Where validity of action taken by State Government is challenged on the ground that action was mala fide than to establish mala fide, it is not necessary for the party alleging mala fide of State action to prove that any named officer or officers was or were responsible for that official act. " In this background, I will have to consider the case on hand. The validity of the action taken by the State Govt. is challenged on the ground of malice in the instant case. It is not necessary in all cases for the party alleging mala fide of such action to prove that any named officer or officers was or were responsible for that official act. The law does not cast any such burden upon the party challenging the validity of the action taken by the State Government. The State Govt. is an institution and its work is carried out through its officers. It cannot be expected from a party alleging mala fide to know what matters were placed and considered by the final authority and who acted on behalf of the State Govt. in issuing the order in the name of the Governor, are all within the knowledge of the State Govt. It will be placing intolerable burden in proof of a just claims to require a party alleging mala fides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose. In the instant case, the petitioner is not entitled to get the advantage of the case referred to by him as he has specifically mentioned in his writ petition about the mala fide acts of the Officers or the M. L. A's or the persons who were responsible in getting the impugned order passed against him. Jt is one thing to say that the petitioner does not know what has happened within the four corners of the Government Secretariat and submits that an inference should be drawn that the authorities have committed mala fide act and the other to say that the particular officer/officers is/are responsible for the mala fide act. In the first part, the petitioner is not in the know of the details of the facts and it can be said that the burden of proof cannot be placed on the petitioner but the same principle will not apply in case the petitioner knows about the details and he makes allegations in the writ petition. All the persons against whom the allegations were made were impleaded as parties. It is very surprising why the petitioner prayed that the names of the persons against whom he has made allegations and who have been impleaded as parties were deleted. The petitioner cannot be allowed to throw hot and cold water at a time. He should have continued the persons to whom he originally alleged as non-petitioner and should have got decided the writ petition so that the true facts might have come on record. However, in the instant case Collector, Nagaur is a party and he has also filed the affidavit and has denied the allegations made against him. It will not be out of place to mention here that no reference has been made in his affidavit about Annexures 2-L and 2-M. It was not possible for him to deny the facts as it was on record and he has addressed a letter to the Director. With this background, I will have to consider the submissions made by the petitioner.
(3.) THERE may be some truth that the action of the State Govt. may be mala fide and the inference for the same can be drawn from the past history of the actions taken by the State Government against the petitioner. The possibility of the mala fide action cannot be ruled out specially in the facts and circumstances of the case where the State Government has not come with a specific reply and has failed to produce the record before the Court. Learned counsel for the petitioner has invited my attention to sec. 40 of the Rajasthan Panchayat Samitis & Zila Parishads Act, 1959. The relevant part of sec. 40 of the Act reads as under : " Sec. 40. Power of Government to remove Pradhan or Up-Pradhan, (or member) (1) If in the opinion of the State Government, the Pradhan or Up-Pradhan (or member) of a Panchayat Samiti wilfully omits or refuses to carry out the orders of the State Government for the proper working of the Panchayat Samiti or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties, or if any disgraceful conduct, the State Government, after giving the Pradhan or Up-Pradhan (or member), as the case may be, a reasonable opportunity for examination and after consulting the Zila Parishad in the matter and taking into consideration its opinion if received within thirty days from the date of the despatch of the communication for such consultation, may by order remove such Pradhan or Up-Pradhan (or member) as the case may be, from office : Provided that the member of a Panchayat Samiti shall be so removable from his office only if he is found to have abused his powers as such, member or to have been guilty of his conduct in the discharge of his duties, or of any disgraceful conduct as such member. " The State Government may suspend any Pradhan against whom an enquiry had been instituted under sec. 40 (1) of the aforesaid Act. Mr. M. D. Purohit, learned counsel for the petitioner submits that Annexure R. 1 is said to be the complaint lodged by the Block Development Officer to the Collector, Nagaur. The complaint is dated December 9, 1982. It seems that a similar complaint might have received by the Hon'ble Minister for Community Development and Panchayat Raj The Hon'ble Minister addressed a letter to the Director requesting him to take necessary action against the petitioner in the matter. The Hon'ble Minister apprised the Collector that some Sarpanch has have requested him that necessary action may be taken against the petitioner under sec. 40 (1) of the Rajasthan Panchayat Samities & Zila Parishads Act, 1959 (for short the Act herein) Annexure R-3 is the copy of the notice which was served on the petitioner. This notice is dated November 27, 1982. It will not be out of place to mention here that in the notice (Annexure R-3), it has specifically been mentioned that the State Govt. has desired that the receipt should be submitted at the earliest and as such, the directions were given to the petitioner to send his comments at the earliest. Annexure R-4 is the Enquiry Report of the Deputy District Development Officer, Nagaur. Vide Annexure R-5, the Collector, Nagaur has forwarded the report to the Director. Annexure-R. 6 is the notice under s. 40 (1) of the Act, by which, the petitioner was asked to submit his reply within a fortnight and in failure to do so, the enquiry shall be conducted exparte. Annexure-R6a is the chargesheet which is the foundation for the suspension of the petitioner. The petitioner has submitted the reply to the chargesheet (Annexure-2 ). As far as charge No. l is concerned, the petitioner has submitted the copy of the plan (Annexure-2-A) The charge is that on August 26, 1982, the petitioner directed that the payment be not made as the construction is not according to the approved plan. I have perused the copy of the plan (Annexure-2a ). Annexure 2 B is the copy of the report submitted by the Junior Engineer, wherein, he has stated that every construction is not made in accordance with the prescribed map. This letter was addressed by the Junior Engineer to the petitioner on an enquiry being made by him whether the construction is being carried out in accordance with the approved plan or not ? Learned counsel for the petitioner submits that the Junior Engineer has intimated him that there is an approved plan. He has further reported that the work is carried out not in accordance with the approved plan. The Junior Engineer intimated to the Pradhan in writing on August 28, 1982 that the Block Development Officer has directed him that there may be plant or no plan, carry out the work. Mr. Purohit submits that the Pradhan was justified in directing that no payment should be made if the work is not carried out in accordance with the approved plan. Mr. H. N. Calla, learned Government Advocate is not in a position to say about Annexures 2-A and 2-B. It is very surprising that such an allegation has been made against the Pradhan without looking into the facts. Even if, it is assumed that there is no approved plan and the work is carried out without the approved plan then the Pradhan is expected to direct that no payment should be made unless the plan is approved by the competent authority. Can in a democratic country like India, the construction be made without an approved plan at the whims of the Officers? If the Pradhan allows that the payment should be made without approved plan then there will be an allegation that the payment has been made without an approved plan. Mr. Calla, learned Govt. Advocate is not in a position to say anything about this allegation except that the authorities will conduct the enquiry and pass necessary orders. A quarry was made to Mr. Calla, learned Govt. Advocate whether payment can be made without an approved plan. He is not in a position to make any submission. Learned counsel for the petitioner submits that the allegation is nonest and the suspension of the petitioner on nonest allegation should be set aside only on this ground. Even if we consider the submission that there may not be an approved plan then also the Pradhan was justified in passing an order that unless the plan is approved, no payment should be made. There is force in the submission made by Mr. Purohit when he submits that allegation is nonest. As far as allegation No. 7 is concerned, it relates to the use of jeep. The petitioner has submitted in his writ petition supported by an affidavit that he has not generally used the jeep. He submits that he generally performs 'padyatra' and the jeep is used by the Officers and he is having no control over it. 1 directed Mr. H. N. Calla, learned Government Advocate to show me the relevant entries of the Log Book to show whether the petitioner has used the jeep. Mr. Calla is not in a position to show whether the petitioner has used the jeep or not? I am not in a position to say anything about the use of the jeep as in spite of the directions, the Log Book has not been produced and the respondents are not in a position to say anything. Learned counsel for the petitioner has invited my attention to Annexure-2g. Para 37 of the Resolution (Annexure-2g) reads as under : ;