COMPILATION OF JUDICIAL PRONOUNCEMENTS ON

COMPILATION OF JUDICIAL

PRONOUNCEMENTS ON

PANCHAYATI RAJ SYSTEM IN

INDIA

VOLUME I

Prepared By:

(INDIAN LAW INSTITUTE, NEW DELHI)

File No. N-21011/14/2015-P&J (Computer No. 8131 )Receipt No : 91359/2019/789

Generated from eOffice by RAJENDRA SINGH YADAV, CONSULTANT, MOPR on 18/02/20 02:41 PM

336

Study conducted by

Prof. (Dr.) Manoj Kumar sinha

Director

Dr. S. Sivakumar

Professor

Dr. Anurag Deep

Associate Professor

Assisted by:

Ms. Anumeha Mishra

Ms. Meera Mathew

Ms. Smriti Brar



337


PRONOUNCEMENTS ON


INDIA

VOLUME I

Prepared By:




338

Study conducted by


Director

Dr. S. Sivakumar

Professor

Dr. Anurag Deep

Associate Professor

Assisted by:

Ms. Anumeha Mishra

Ms. Meera Mathew

Ms. Smriti Brar



339


PRONOUNCEMENTS ON


INDIA

VOLUME III

Prepared By:




340

Study conducted by


Director

Dr. S. Sivakumar

Professor

Dr. Anurag Deep

Associate Professor

Assisted by:

Ms. Anumeha Mishra

Ms. Meera Mathew

Ms. Smriti Brar



341

i

TABLE OF CONTENTS

A. VOLUME I…………………………………………………..……………………1-257

I. INTRODUCTION……………………………………………….……......................... 1

II. BACKGROUND OF THE 73RD

AMENDMENT OF THE CONSTITUTION…... 4

III. SUPREME COURT……………………………………………………………………..15

1. Secretary, Sarvodaya Educational Society v. Ginjala Panasaiah and Ors………....15

2. Sakthi Coop. Industrial Estate v. Kursheed Begum and Ors…….…………………17

3. State of Rajasthan and Anr. v.. Kulwant Kaur……………………..……………….19

4. Gram Panchayat v. Jagir Singh………………………………...…………………….22

5. Ram Beti v.. District Panchayat Raj Adhikari and Ors……………...…………..…24

6. Surinder Kaur v.State of Punjab & Ors………………………………..…………....27

7. Boddula Krishnaiah and another v. State Election Commissioner, A.P. &

Ors……………………………………………………………………………..........29

8. M.V. Venkataramana Bhat v. Returning OFficer and Tahsildar & Ors…………...32

9. Jaenendrakumar Phoolchand Daftari v. Rajendra Ramsukh Mishra………..….…34

10. State of Himachal Pradesh and Ors. v. Surinder Singh Banolta……………….…..37

11. Baldev Singh v. Shinder Pal Singh and Anr……………………………………..….40

12. Harnek Singh v. Charanjit Singh and Ors………………………………………..….43

13. Udey Chand v. Surat Singh and Anr......................................................................46

14. Som Lal v. Vijay Laxmi and Ors............................................................................49

15. Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao And Ors……………..52

16. Bhanumati v. State Of Uttar Pradesh, Through Its Principal Secretary And

Ors……………………………………………………………………………………54

17. Anokh Singh v. Punjab State Election Commission and Harchand Singh v. State Of

Punjab and Ors…………………………………………………………………….…57

18. Dr. K. Krishna Murthy and Ors. v. Union Of India (Uoi) And Anr…………..……60

19. Raghvendra Kumar v. Prabal Kumar And Ors…………………………….………..64

20. Zelia M. Xavier Fernandes E. Gonsalves v. Joana Rodrigues And Ors……………66

21. Gram Panchayat, Patiala v. State Of Punjab And Others………………………......69

22. Radhakisan Rathi v.. Additional Collector, Durg…………………………………..71



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23. Jindal Stripe Ltd. and Ors. v. State Of Haryana And Ors……………………..…..74

24. R.N.A. Britto v. Chief Executive Officer And Others…………………………….77

25. Madan Mohan Sharma And Anr. v. State Of Rajasthan And Ors…………….....80

26. Girjesh Shrivastava and Ors. v. State Of M.P. And Ors…………………………..83

27. Jeet Singh and Ors. v. State Of U.P. And Ors…………………………………......87

IV. ANDHRA PRADESH……………………………………………………………………90

1. B.K. Parthasarathi v. Government of A.P. and Others……………………………....….90

2. Chava Reddy Saraswatamma v. Presiding Officer-cum-Election Officer……………..93

3. D. Rajamani Reddy and Ors. v. Government of A.P. and Ors……………………...… 96

4. D. Sathi Reddy v. Commissioner, Panchayat Raj A.P., Hyd., and Ors ………………..99

5. D. Srinivas Rao and Ors. v. State Of A.P., P.R. and R.D. (Pts Iii) Dept.&Anr ……… 101

6. D. Sujata v. Chief Executive Officer,ZilaParishad and Ors…………………………... 104

7. Gadi Koppula Rajaswami v. Election Tribunal, (Senior Civil Judge). Adilabad

&Others………………………………………………………………………………... 106

8. Gogineni Koteswara Rao v. Government Of Andhra Pradesh, Panchayat Raj, Hyderabad

and Others………………………………………………………………..………….….108

9. B. Raghurami Reddy v. Government of A.P. and Ors…………………………….…. 111

10. Bandila Audi Seshamma v. Government of Andhra Pradesh and Ors…………….... 114

11. Banne Gandhi and Ors. v. District Collector and Ors………………………….….….117

12. Challa Satyanarayana v. TadiLakshmana Rao and Ors……………………………….119

13. Simmiti Arjuna v. Pappala Narasaiah and Anr…………………………………….….121

14. Chandra Reddy v. Government of A.P. and Ors………………………….……….… 124

15. Yeripalli Ramulamma v. District Collector and Ors……………………………....…..127

16. Kothota Marine Fishermen Co-operative Society v. Director of Fisheries and

Ors……………………………………………………………………………………..129

V. BIHAR............................................................................................................................132

1. Rohtas Zila Gram Raksha Dal Singh and etc. v. State of Bihar and

Ors............................................................................................................................132

2. Sapru Jayakar Motilal C.R. Das Institute of Legal Aid, Studies and Research and Ors v.

The Union of India (UOI) and

Ors............................................................................................................................135

3. Smt. Rambha Sinha v. The State of Bihar and

Ors............................................................................................................................138



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4. Suryadeo Kumar, son of late Gyan Yadav and Ors v. The State of Bihar through the

Secretary, Department of Panchayati Raj and Ors and Pinki Kumari, wife of Sri Prem

Sadan Kumar v. The State of Bihar through the Chief

Secretary,.................................................................................................................142

5. Vijay Kapari Son of Late Sant Lal Kapri v. The State of Bihar and

Ors...........................................................................................................................146

6. Akchay Kumar Mandal v. The State of Bihar and

Ors.........................................................................................................................150

7. Banwari Yadav v. The State of

Bihar......................................................................................................................153

8. District Magistrate-cum-District Election Officer and Anr. v. Satyendra Kumar and

Ors........................................................................................................................157

9. Hiralal Mandal v. State of

Bihar......................................................................................................................160

10. Mahesh Jha and Ors. V. The State of Bihar and

Ors........................................................................................................................163

VI. CHATTISGARH…………………………………………………………………………166

1. Ganesh Ram Koshare V. State Of Chhattisgarh & Ors…………………………..….166

2. Jitendra Raj V. State Of Chhattisgarh……………………………………….………..169

3. Rambai Dansena V. State Of Chhattisgarh & Ors…………………………..………..172

4. Yashwant Kumar Sahu V. State Of Chhattisgarh & Ors…………………………….174

VII. DELHI……………………………………………………………………………………176

1. Balwan Singh And Ors v Settlement Officer………………………………….…….176

2. Chand Sharma AndOrs.Vs.Lt. Governor Of Delhi And Ors………………………..178

3. Kewal Singh Chadha And Ors. V. The Director(Panchayats) A.D.M. And Ors…...180

4. Kashi Ram And Other V. GaonSabha………………………………………….……183

5. Ram Narain V. The State………………………………………………...……….….185

6. Shri Rizak Ram V. Rajeev Singh And Others…………………………………...….188

IV. GUJARAT……………………………………………………………………………..….190

1. Ashok Kumarbhavsangbhai Chaudhary v. The Director of Muncipalities And

Ors……………………………………………………………………………..….190

2. Gopal Bhikhemchandas Patel v. District Development Officer And Ors………......193

3. Nathabhaidevabhaizala and anr. v. State Of Gujarat and Ors. Successor In Office

Secretary……………………………………………………………………….…..196



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4. Pruthvisingh Amarsingh Chauhan v .K.D. Rawat Or His Successor In Office

Secretary……………………………………………………………………….…..199

5. Rasikchandra Devshankeracharya and Ors. v .State Of Gujarat and Ors…………....202

6. Administator Barvala Gram Panchayat v. State Of Gujarat And Anr………………..205

7. Bhalod Gram PanchayatAndAnr. v. State Of Gujarat And Ors…………….………208

8. Gujarat Pradesh Panchayat Parishad And Hiteshbhai Kantilal Barot v. State Election

Commission And Ors……………………………………………………….….….211

9. Kalidas Karsanbhai Chavda v. Vadodara Jilla Panchayat Elections……………....215

10. Modi Ramsingbhai Madhavbhai v. Bhabhar Nagar PanchayatAndAnr…………….218

V. HIMACHAL PRADESH………………………………………………………………220

1. Angdui Norbu and Ors. v. State of Himachal Pradesh and Ors………………….220

2. Chet Ram Bharti v. State of H.P. and Others…………………………….………224

3. Swarna Devi v. State of Himachal Pradesh…………………………….…….…..227

4. Duni Chand v. State of Himachal Pradesh & Ors…………………….………….230

5. Ram Kishan Rohal v. State of Himachal Pradesh & Ors…………………..…….233

6. Bala Ram v. State of Himachal Pradesh and Ors……………………….…….….236

7. Manoj Kumar v. Lalita Devi and Ors……………………………………….…....239

8. Matha v. Smt. Kaula……………………………………………………....…...….242

9. State of Himachal Pradesh and Anr v. Brahma Nand Sharma…………………..246

10. Sarv Dayal v. State of Himachal Pradesh and Anr…………………………….…249

11. Sk. Nek Ram and Ors. v. State of Himachal Pradesh…………………….......….251

12. Surat Ram etc. v. State of Himachal Pradesh………………………………....….255

B. VOLUME II………………………………………………………………………258-496

VI. JAMMU AND KASHMIR………………………………………………………….. 258

1. Abdul Subhan Lone v. State of J&K &Ors…………………………..……..…258

2. Ghulam Mohammad Lone v. State of J&K……………………………..…….261

3. Krishan Lal v. State of J&K and ors……………………………………...…..264

4. Kuldip Singh &Ors. v. State of J&K & Ors……………………………..……267

5. Lal Singh v. State of J&K and ors……………………………………………..269

6. Prithvi Raj Bhagat v. State and Ors…………………………………...….……273

7. Puran Chand vs. District Election Officer and Ors…………………..…..…..275

8. Uttam Chand v. State of J & K………………………………………..…..….278



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VII. JHARKHAND……………………………………………………………….……….280

1. Shibnandan Sah v. State of Jharkhand and Ors………………………………..280

2. Savitri Devi v. State of Jharkhand and Ors……………………………………283

3. Suman Dubey v. The State of Jharkhand and Ors……………………………285

4. Parmeshwar Pandit& Others v. The State of Jharkhand & Others……….…..287

5. Ramyad Ram and Ors. v. State of Jharkhand and Ors………………….…....289

6. Sunil Kumar Das and Ors. v. State of Bihar (Now Jharkhand) and Ors…….292

7. Basanti Devi v. The State of Jharkhand & Ors……………………………….294

8. Satya Narayan Yadav v. The State of Jharkhand and Ors…………………...297

9. Sudhakar Singh Sardar and Ors. v. State of Jharkhand and Ors……………..300

VIII. KARNATAKA……………………………………………………………………..…302

1. Chikkamuniyamma Vs. The Assistant Commissioner…………………….…302

2. K.S. Pampanna Vs. The Deputy Commissioner, Bellary and Others ...….…305

3. Karnataka State Election commission, now represented by its Under Secretary Vs. Sri

Venkatesh……………………………………………………………………307

4. Guddappa PoojaryVs. Assistant Commissioner, Puttur and

Ors……………………………………………………………………………..310

5. Nagappa Vs. Gangappa……………………………………………………….313

6. B.K. Ningappa S/o Late Sri Kodappa and Jayanna S/o Late Sri Doddaningappa v.B.K.

Venkatesh, The President Gram Panchayat, The Secretary Gram Panchayat Executive

Officer Taluk Panchayat ………………………………………………….…316

7. Rathnamma Vs.State of Karnataka……………………………………….…319

8. Smt. Parvathi v. The Assistant Commissioner, Haveri Sub-Division, Haveri and

Another …………………………………………………………………….322

9. Sri Ashokan. K. and Ors. Vs .State of Karnataka Department of Rural Development

and Panchayat Raj, Represented by its Principal Secretary, State Election

Commission, Represented by its Secretary, The Regional Commissioner, Bangalore

Region and Bangalore Urban ZillaPanchayat, Represented by its Chief Executive

Officer And Sri H.T. Nagareddy and Ors. Vs. State of Karnataka, The Department of



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Rural Development and Panchayat Raj, By its Secretary, The Commissioner, State

Election Commission and The Regional Commissioner, Bangalore Division …….324

10. .Thirumalamma and Ors. V. The Principal Secretary Government of Karnataka

Housing & Urban Development Department and Ors. Venkatesha, S/o Sri

Siddalingappa and Ors………………………………………………………..327

IX. KERALA…………………………………………………………………………………..332

1. Aneesh v.The Ombudsman for Local Self Government Institutions……………..332

2. Antony K.P. v. ChellanamGramaPanchayath and Ors……………………...…..325

3. Beena Jolly v. State of Kerala and Ors. ………………………………………..…338

4. Dharmadom Paristhithi Samrakshna Samiothi v.The Dharmadom Gramapanchayath

& Another……………………………………………………………………….....341

5. George Varghese Vs. State of Kerala……………………………………………..344

6. K.P. Wilson Vs. Kozhinjampara Grama Panchayath and Ors. …………….……347

7. Kadaplamattom Grama Panchayat v. Johny Roy…………………………….…349

8. The Chief Secretary to Government, The Executive Engineer and The Superintendent

of Police (Rural) vs. Khalid Mundappilly…………………………………….......352

9. Kurian Jose Vs. Kerala State Financial Corporation ………………………….…355

10. Malankara Plantations Ltd. Vs. Edavetti Grama Panchayat……………….…….357

11. Nirmalyam Residency Hotels Pvt. Ltd. Vs. Alankode Grama Panchayat………359

12. Onset Developers Vs. Secretary, Akathethara Grama Panchayat and Ors…….361

13. Pappinissery Visha Chikilsa Society Vs. State of Kerala………………………..364

14. Roy Vs. Ayavana Grama Panchayat……………………………………………..366

15. S.S. Sugil Vs. K. Sadanandan & Others………………………………………....368

16. Thalavoor Grama Panchayat Vs. Salim………………………………………..….370

17. Travancore Rubber and Tea Co. Ltd. Vs. Peruvanthanam Grama Panchayat…...372

18. V. Govindan Kutty Vs. Chelakkara Grama Panchayath and Ors. & Anr…….….374

19. V.R. Sukumaran Nair & Ors. Vs. The Secretary, Vazhoor Grama Panchayat…..376



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X. MADHYA PRADESH…………………………………………………………. 378

1. Ajay Tripathi and Ors. v. State of Madhya Pradesh and Ors…………..……..378

2. Anjana Mulkalwar (Smt.) v. Bhanu Yadav and Ors……………………….…..381

3. APL International Ltd. v. State of Madhya Pradesh and Ors. ……………….384

4. Awadhesh Kumar Sharma v. State of Madhya Pradesh ……………....……..386

5. Dhanwanti v. State of M.P. and others…………………………………..……..389

6. Dukhkhu Singh v. State of M.P. and Ors………………………………..……..392

7. Kailash Babu Rai v. State of M.P. and Ors. ……………………………………395

8. Manoj Kumar Yadav S/o Shri Jahar Singh Yadav v. State of M.P. through the

Secretary, Panchayat Department, Collector, Deputy Director, Panchayat and Social

Service and Gram Panchayat, Sendri Janpad Panchayat through its Sarpanch

…………………………………………………………………………………...397

9. Smt. Nati Bai v. The Returning Officer, Panchayat Elections Sheopur &

Ors……………………………………………………………….………………399

10. Pawan Rana v. State of M.P. and Ors…………………………………………402

11. Smt. Phool Bai v. State of Madhya Pradesh and Ors…………………..…….404

12. Pushpendra Singh v. Padmakar and Ors…………………………...…………406

13. Raja Ram Ahirwar v. State of Madhya Pradesh and Ors……….…………….408

14. Ram Singh Yadav and Ors. v. State of M.P. and Ors……...………………....410

15. Ramesh Chandra Vanshkar v. State of M.P. and Ors…………………….…..413

16. Satya Narayan s/o Onkarlalji Patidar v. Additional Commissioner, Ujjain and

Others…………………………………………………………………………..415

17. Suresh Baba v. Virendra Tyagi and Others……………………………..……417

XI. MAHARASHTRA……………………………………………………………………419

1. Nandkishor, Prashant, Avinash and Ajay Shravanji Gondane v. The State of

Maharastra through the Sectary and Others…………………………………..419

2. Sau. Pramila v. Bandu…………………………………………………………422

3. Sau. Banotai v. The Divisional Commissioner, Amravati and Ors………….424

4. Shobha Dipak Behde v. Umakant Reva Fegade and Others…………………426

5. Suresh Balkrishna Pogale v. State of Maharashtra and Ors…………………..429

6. Gajanan Baburao Sankpal, v. Avinash Bhauso Kamble……………………...431



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7. Vikramsing S/o Jalamsing Walvi and Uttam S/o NimbhaDeshmukh v. The State of

Maharashtra…………………………………………………………………....434

XII. NORTHEAST………………………………………………………………………..438

1. T. Manzaching V. The State Of Manipur And Ors……………………………..438

2. Smt. DevimayaThapaAndOrs. V. State Of Manipur And Ors…………………440

3. KhangembamImoba Singh And Ors. V. State Of Manipur And Ors………….442

XIII. ODISHA………………………………………………………………………………444

1. Smt. Haramani Singh V. State Election Commissioner, Orissa And Another……

…………………………………………………………………………………444

2. Sarat Kumar Mohanty V. State Of Orissa……………………………………..447

3. Ram Krishna Padhy& Others V. State Of Orissa……………………………..449

4. Rajkishore Dalai V. Kalandi Pradhan And Another………………………….452

5. Prabhasini Nayak &Ors V. State Of Orissa & Ors………………………..…..454

6. Pedenti Malana And Others V. State Of Orissa And Others……………..…..456

7. Nutan Kumar Rout V. State Of Orissa And Others…………………………..458

8. Nabaghana Das And Others V. State Of Orissa And Others……..………….460

9. Mahadev Pradhan V. State Of Orissa, Represented Through

Secretary, Panchayati Raj And Others………………………………………..462

10. Laxmidhar Tripathy V. State Of Orissa And Others……………….…………465

11. Harihar Swain And Others V. State Of Orissa And Other…………………...468

12. Ajay Kumar Sahoo V. State Of Odisha & Other…………………..………..470

13. Amiya Kumar Pani V. State Of Orissa………………………………………..473

14. Arun Kumar Sahoo V. State Of Orissa & Others………………….…………475

15. Bharati Pradhan V. State Of Orissa And Others………………….…………..477

16. Bijay Kumar Behera And Others V. State Of Orissa And Others….………..480

17. Fakirmohan Das And Others V. State Of Orissa & Others…………………..483

18. Gangadhar Mohapatra V. State Of Orissa……………………………..……..486

19. Gour Chandra Pradhan V. State Of Orissa And Other ……….….…..…….489

20. Durga Bai Sahu V. State Of Odisha And Others……………………………491

21. Brundabati Pradhan V. State Of Odisha & Others…………………….……494



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C. VOLUME III…………………………………………………………………….497-780

XIV. PUNJAB AND HARYANA…………………………………………..……………497

1. Amandeep Kaur V State Of Haryana And Anr…………….………………..497

2. Aas Mohammad V State Of Haryana And Others………..………………….499

3. Baljinder Kaur V Director, Panchayats, Punjab And Ors……………..…...501

4. Budh Singh V. State Of Haryana And Others…………………………...…..503

5. Deepak Mangla V. Nanakchand And Ors………………………….…….…..506

6. Dindar V. Yamin And Anr………………………………………………..….509

7. Surender Singh V. State Of Haryana And Ors……….……………………….512

8. Isrial V. State Of Haryana………………………………………………...…..514

9. Deepak Sharma V. Hardeep Kaur And Others……………………………....516

10. J. Prithi Ram V. Gram Panchayat Of Village Reona Bhola………………….520

11. Parbandhak Committee Gurdwara V. Darshan Kaur AndOrs…..……….…..523

12. Mohinder Singh V. State Of Punjab And Ors…………….……………….….526

13. Jagdish Chander Sarpanch V. State Of Haryana And Others…...………...…529

14. Gurmeet Kaur V. Director Rural Development And Panchayats And Gram Panchayat

Harbans Kaur……………………………………………………………….….532

15. Gurdial Singh V. Additional Director Panchayats…………..………………...535

16. Gram Panchayat V. Commissioner And Deenu V. Gram

Panchayat…………………………………………………………………….….538

17. Gram Panchayat Village Sihandaud V State Of Punjab And

Ors………………………………………………………………………………..542

18. Gram Panchayat, Village Bir Kalwa V Commissioner, Ambala

Division……………………………………………………………….….......….545

19. Gram Panchayat Shahbazpur Nawan V State Of Punjab And Or…………..…547

20. Gram Panchayat Kalawar v. State Of Haryana And Ors……………………..550

21. Gram Panchayat, GarhiAjit Singh V State Of Punjab And

Ors………………………………………………………………..………………553

XV. RAJASTHAN...............................................................................................................556

1. Mewa Ram v State of Rajasthan and Ors……………………………….…………556

2. Bhaiya Ram and Ors. v .State of Rajasthan and

Ors…………………………………………………………………………..……..559



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3. Manak Chand Nogia v The State of Rajasthan and Ors………………………564

4. Kartar Singh v State of Rajasthan and Ors………………………….………..567

5. Laxman Meena Vs. State of Rajasthan and Anr………………………………571

6. Asu Ram and Anr. v .State and Ors…………………………………………..574

7. Daya Ram Bhadu v. State of Rajasthan ………………………………………577

8. Smt. Ummed Kanwar v. Prabhu Singh and Ors……………………………….580

9. Dhanraj Meena v. State of Rajasthan……………………………….………...583

10. Ram Niwas v. State of Rajasthan and Anr………………………………….…586

11. Smt. Saroj Chotiya v. State of Rajasthan and Ors………………………….....590

12. Karamjeet Singh v. State of Rajasthan…………………………………….……….593

13. Devendra Kaur v State of Rajasthan…………………………………….…….596

14. Ram Singh Barwal v.State of Rajasthan..........................................................599

15. Khem Das Vs .The State of Rajasthan and Anr……………………….……...603

16. Ram Chandra Meena v. State of Rajasthan……………………….……….…606

17. Mukesh Kumar Ajmera and Ors. v .State of Rajasthan and Ors……..……...609

XVI. TAMIL NADU………………………………………………………….…............... 612

1. D. Bagyalakshmi v. The Secretary to Government , Department of Rural

Development and Panchayat Raj………………………………………………...612

2. D. Chandrasekarv. The District Collector, The Revenue Divisional Officer and

Budhur A. Venugopal………………………………………………………..…...615

3. M. Egavalli Mahalingamv.The State of Tamil Nadu represented by the Principal

Secretary to Government Rural Development and Panchayat Raj Dep……..….618

4. The State and Ors v. C. Jebakumar and Ors………………………………..……621

5. K.V. Muthuramalingam v. Soloman and Election Officer-cum-Block

Development……………………………………………………………………..624

6. The President, Kadamalaiputhur Village Panchayat v. The Kadamaliputhur

Village……………………………………………………………………………626

7. R. Krishnaperumal and Ors v. The District Collector/Chairman, District Rural

Development Agency and Ors………………………………………………;….628

8. N. Chidambaram v. The Block Development Officer, Panchayat Union

Office…………………………………………………………………………….631



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9. Dr. Nedunchezhiyan Engineering College represented by its Administrative Officer,

K. Senthil v.The State of Tamil Nadu AndNeyveli Educational Trust rep. by its

Secretary M. Natarasan v. The State of Tamil Nadu……………………….…...633

10. P. Soodamani v. The Tamil Nadu State Election

Commission……………………………………………………………………...636

11. T. Paul Raj v. District Collector and

Another……………………………………………………………………….......638

12. S. Geetha v. State of Tamil Nadu, rep. by Secretary to Government, Rural

Development and Panchayat Raj Department, Fort St. George, Chennai and The

Collector and Inspector of Panchayats, Thanjavur District, Thanjavur………….640

13. Vengaivasal Village Panchayat by its President v. The State of Tamil Nadu by its

Secretary to the Revenue Department, The Commissioner of Land Administration,

The District Collector and The Commissioner, St. Thomas Mount Panchayat

Union………………………………………………………………………………..642

14. Kamaraj College of Engineering and Technology v. The President…………..…..645

XVII. UTTARAKHAND………………………………………………………………………. 647

1. Souninder Singh Hooda v. State of Uttaranchal and Ors………………….….…..647

2. Ramesho Devi Kashyap Vs. State of Uttarakhand and Anr……………………...649

3. Sh. Rishipal Singh Rana s/o Sh. Shivnath Singh and 2 others and Sh. Daya Kishan

Kaloni S/o Shri Ishwar Dutt Kaloni and four Ors. V. State of Uttaranchal through

Chief Secretary Uttaranchal Shashan and six

Ors……………………………………………………………………………….….652

4. Nandan Singh Nayal and Ors. Vs. State of Uttarakhand through Chief

Secretary……………………………………………………………………………654

5. Lakhmi Chand @ Lakshmi Chand S/o MukhtyaraVs. District Magistrate and

Ors………………………………………………………………………………….656

6. Gulfam Ali and two Ors. Vs. State of Uttarakhand and Anr……………………...658

7. Ashwini Kumar and Ors. Vs. State of Uttarakhand and Ors………………………660

. XVIII. UTTAR PRADESH………………………………………………………………… 662

1. Veenu Gangawar v. State of U.P……………………………………………….….662

2. Jamil Ahmad v. State Of U.P. And Others…………………………………….…..665



352

xii

3. Shyamdularidevi v. State of U.P…………………………………………….….….667

4. Jai singh yadav v. Additional District Judge……………………………………..…670

5. Champa devi v. Prescribed Authority/Sub Divisional Magistrate…………….……673

6. Dayashanker v. District Panchayat Raj Adhikari And Anr…….…………………..676

7. Manjudevi v. State Of U.P. And Ors.………………………………………….…...678

8. Shamiuddin v. Additional District Judge (i), Mathura……………………………..681

9. Surendra Kumar and Ors. V. State of U.P. and Ors……..………………………….684

10. Kusma devi v. State of U.P…………………………………………….………...…686

11. Gram Vikas Adhikari Sangh v. State of U.P……………………………………….688

12. Pappu v. State of U.P……………………………………………………..………...691

13. Premlal patel v. State of U. P…………………………………………………..…...694

14. Vijay kumar v. District magistrate, Siddharthnagar………………………………..697

15. Virendra Singh v. Indian Oil Corporation Limited………………………………...700

16. Ram narain v. Dy. Director of Consolidation……………………………………...702

17. Ganesh ram v. Chief Development Officer…………………………………..…….705

18. Fakir Chand v. Nagar Palika………………………...……………………….……..708

19. Ushadevi v. State of U.P…………………………………………...……………….710

XIX. WEST BENGAL………………………………………………………………………….. 713

1. Ajit Kumar Chatterjee & Ors V. Electoral Registration Officer, Bhatar &

Ors…………………………………………………………………………………..713

2. Nur Bux Vs. The State & Ors………………………………………………...…….716

3. Nitya Gopal De V. The State Of West Bengal And Ors………………………..…717

4. Sultan Khan V. Sailesh Chandra Nundy………………………………………..…720

5. Lakshmi Mukherjee V.Tapan Kumar……………………………………………...723

6. Srikanta Das Adhikari V. Jareswar Chanda And Ors…………….………………726

7. Santi Ranjan Mirdha And Ors. V. State Of West Bengal And Ors……………….729

8. Anwar Ali Khan V. Hazi Sajjad Ali Mondal Khan…………………………….….731

9. Alaya Khatun v. State…………………………………………………………...…734

10. In Re: Mihir Mondal And Ors…………………………..……………………….…736

11. Benoy Kr. Ghosh and Ors. V. State Of West Bengal And Ors……………..……738

12. Rahamat Sanpui Vs. The State Of West Bengal And Ors…………………..…….741

13. Samar Samanta & Anr. Vs. State Of West Bengal & Ors……………………..….744



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xiii

14. Hitendra Chandra Choudhury V. State Of West Bengal & Ors…………………..747

15. Kanai Betal V. State Of West Bengal…………………………………………..….750

16. Anil Pahar V.Subhas Mahato And Ors………………………………………..……753

17. Midnapur Zilla Parishad V. State Of West Bengal…………………………..…....756

18. Debi Prosad Singha Roy V. State Of West Bengal And Ors………………….….759

19. Birendra Nath Jana and Ors. V.State of West Bengal And Ors………………….762

20. Sasanka Sekhar Panda V. State Of West Bengal & Ors………………………….765

21. Bankim Chandra Banerjee and Ors. V. Distt. ……………………………………768

22. Niranjan Roy V. Dist. Panchayat Officer And Ors………………………….…...771

23. Purnendu Sekhar Biring V. Govt. Of West Bengal And Ors……………….…….773

XX. CONCLUSION………………………………………………………………………..776



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Panchayati Raj Institutions

INTRODUCTION

The Panchayati Raj system in India generally refers to the structure as introduced by the

Constitutional Amendment in the year 1992, although it is based upon the traditional panchayat

system of South Asia. The modern panchayati raj and its gram panchayats are not to be confused

with the extra-constitutional khap panchayats (or caste panchayats) found in some parts of

northern India. While the panchayati raj system was formalized in 1992, leading up to that

change, a number of Indian committees studied various ways of implementing a more

decentralized form of administration. The importance of Panchayati Raj should be obvious in a

country where four, out of every five citizens live in the villages and where the incidence of

poverty is much higher than in towns.1

Thoughts on rural local government or Panchayati Raj are thus, an integral part of the concern

for social and economic amelioration of the rural people. At the time of framing of India’s

Constitution, the deliberation of the Constituent Assembly was aimed towards drafting of a

Constitution that would serve the ultimate goal of social revolution and of national renaissance.

The members of the Assembly searched for the nation’s rich heritage to find indigenous

institutions capable of meeting the needs which would result most likely in basing the

Constitution on the village and its panchayat and erecting upon them a superstructure of indirect

decentralized Government in the "Gandhian" manner.2

The incorporation of Article 40 of the Constitution of India requires the state to take steps to

organize village panchayats and to confer on them necessary powers and authority so as to

enable them to function as units of local self-government. Being a Directive Principle of State

Policy, the Article is not enforceable as such but the States are obligated to take efficient

measures for the realization of these ideals enshrined in the directive principles. The idea

underlying this specific constitutional provision is to introduce democracy at the grassroots

1 Research Journal of Social and Life Sciences, June-2015 , 2009, at pg 8

2 Dr. B.R. Ambedkar The Man and His Message: A Commemorative Volume I , Sudarshan Agarwal (Ed.), Rajya

Sabha



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level. This provision does not prescribe as to what powers should be given to the panchayats or

what their structure should be and that is why panchayati laws vary from one state to another.3

The euphoria over a new law tends to soon give way to sombre sentiments on the limited impact

of the law on the ground. The 73rd Amendment to the Constitution of India granting

Constitutional status to the Panchayati Raj Institutions (PRIs) has been no exception. The 1992

Amendment sought to make the PRIs the cornerstone of the process of local self-governance in

India. However, ten years down the line, the realisation fast gained ground that while the 73rd

Amendment promised much to Panchayats, it has delivered little.4

The constitution was a watershed in the history of decentralized governance, planning and

development. It made panchayat the third tier of government with reasonable substance and

contents in terms of power and authority. It was also a paragon in so far as creating adequate

space for women and marginalized groups in the federal setup was concerned. There are no two

opinions about the fact that the central act gave birth to the third generation of panchayat in

India. The main lacuna of this act however is that instead of clearly specifying the functions and

powers of panchayat, it has left it to the discretion of the respective state governments. The

experiences of the functioning of the panchayat reveal that while elections have been held

regularly, barring a few states, the states have been rather slow in devolving power to the

panchayat bodies.5

The purpose for widening the scope and fairness of a democracy is to promote the twin

objectives of accountability and responsiveness of policy concerning the delivery of local public

goods and services to citizens, and decentralization of power is one such way to ensure the

widening.6

3 M. M. Sankhdher and S. S. Nagel , Capitalism, Socialism and Democracy, at pgs. 122-125 4V. Upadhyay ‘Panchayats and Paper Laws, Simmering Discontent over 73rd Amendment’, the news in

proportion ,15 july 2015, available at: http://indiatogether.org/govt/local/opinions/paperlaws73.html, (Last visited

on 30th December, 2015)

5 M. Pal, Panchayati Raj and Rural Governance: Experiences of a Decade, Economic and Political Weekly, Vol.

39, No. 2 (Jan. 10-16, 2004), pp. 137-143 6 S. Kumar, ‘The Constitution (73rd Amendment) Act, 1993 and the Status of Rural Local Governance in India in

Last Two-Decades’, available at: rostrumlegal.com, (Last visited on 30th

December, 2015)



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Bureaucracy and the Panchayati Raj System:

Bureaucracy comes in as a stakeholder not in the sense of deriving benefits out of the system,

but rather as an organ which plays a vital role in the success of the PR system. Bureaucracy has

not been sympathetic to the PR system as the bureaucratic gate keeping of Panchayats has

always existed where bureaucrats throw rules at Panchayats but are never accountable to them.

Most panchayati raj institutions still operate as poor adjuncts to the bureaucracy and higher level

governments.7

There has been a big disconnect between the lower level bureaucracy and the PR system with the

tussle still ongoing. Amidst all this, the PR system has tried to function well and flourish. But

even the transfer of service control of lower bureaucracy to Panchayats has not been successful

as in Madhya Pradesh it has been tried and resulted in a big failure. It has been seen that the civil

servants at the local level are accountable only to their seniors in the administrative hierarchy

and never want to be accountable to the members of the local government.8

By virtue of the Constitutional Status bestowed upon the PRIs, it now has the potential to

revolutionize the way we have been seeing local self-governance. It is not only a system of

participative self governance but it ensures political empowerment to the poor, marginalized, and

the oppressed, which traditionally in our country have been the Scheduled Castes, the Scheduled

Tribes, and the women. These features activate the Panchayati Raj institutions today, to

contribute to the process of development.9

Indian culture and social ethos have to a large extent been influenced by a patriarchal value

system. There are of course regional variations- in the northern states the prevailing attitude is

more discriminatory against women than in the southern states. But at the same time, there are

notable exceptions as well. As a result of these deeply entrenched social attitudes and practices,

women; by and large have not been independent decision makers in the country.

7 Ibid

8 Ibid

9 R.Singh and V. Choudhary, ‘Panchayati Raj and the 73rd Amendment, available at

http://shabdbraham.com/ShabdB/archive/v1/i11/sbd-V1-i11-sn4.pdf, (Last Visited on 1st January, 2016)



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Since it is for the first time in the political history of India that one third of the total seats in its

local self government institutions were reserved for women, the legislation had several

implications for the empowerment of women. It nurtured a silent revolution. However, the

reservation itself can only be regarded as the first step in this direction. It is necessary to create

proper social, economic and also political conditions to enable women to participate effectively

in the local government institutions without endangering the positive values of the prevailing

family system.10

BACKGROUND OF THE 73RD

AMENDMENT OF THE CONSTITUTION

The system of Panchayat Raj has existed in India since times immemorial. The Traditional

Panchayats had been formed in various parts of India after the pastoral society was transformed

into an agrarian one, following the emergence of agriculture as the foremost mode of production

and the consequent settlement of the villages. Every village community formed a council for the

maintenance of the system and conflict resolution. The British too admired the village

‘Panchayat’. Sir Charles Metcalfe, a British governor in India in the 19th Century even called

them “the little republics”. But these so called little republics were not ideal centres with

democratic participation of all the people, due to the caste ridden feudal system of those days.11

During the British period, the working village assemblies were kept alive and wherever there

was a demand for them, they were revived. In fact, local self government in India, in the sense of

a representative institution accountable to the electorate, was the creation of Lord Ripon in 1882.

It provided for a local board consisting of a large majority of elected non-official members and

was presided over by a non-official chairman. 12

By 1925, British India had passed acts for the

establishment of village Panchayats. However, those panchayats covered only a limited number

of villages and had, generally, a limited number of functions.13

10 B. Mohanty, ‘Panchayati Raj, 73rd Constitutional Amendment and Women’, Economic and Political Weekly,

Vol. 30, No. 52 (Dec. 30, 1995), pp. 3346-3350 11

The Monthly Journal, Ministry of Rural Development Vol. 58 No. 12, October 2010, available at

http://yojana.gov.in/CMS/(S(y4dqrc55g1m1qhnd4soqih45))/pdf/Kurukshetra/English/2010/October.pdf,(Last

Visited on 1st Jan 2016)

12 G. Matthew, ‘Panchayati Raj from Legislation to Movement’, (Concept Publishing House, New Delhi, 1994) at

pg. 4

13

Ibid



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Gandhiji had spoken of Gram Swaraj (Village Republics) in which adult villagers would

annually elect the government, which would have authority and jurisdiction in the fields of

legislation, jurisdiction and executive decision-making without interference from the state

government. With the gaining of independence, although the panchayat Raj found strong

advocates in the Gandhian tradition and Sarvodaya movement, but the reality, which is often

belied, led to Gandhiji’s vision of gram swaraj being shattered, when Panchayat Raj was

included only as Article 40 of Directive Principles of State Policy of our Constitution. It led B.R.

Ambedkar, while introducing the draft constitution on the 4th of November 1948, to remark that,

“these village republics have been the ruination of India. I am there for surprised that those who

condemn provincialism and what is the village but sink of localism, a den of ignorance, narrow

mindedness and communalism?” 14

The history of legalized or institutionalized Panchayats (initiated by the British in different parts

of India in the later part of the 19th century) is not very old. However, the spirit, in which this is

viewed in independent India, is believed to be ancient. In the early ages, when the emperors’ rule

hardly reached remote corners of the kingdom, villages were generally isolated and the

communication systems rather primitive, village residents gathered under the leadership of the

village elders or religious leaders to discuss and resolve their problems. This practice of finding

solutions to local problems collectively, which has found mention in ancient texts, like

Kautilya’s “Arthshastra” and in subsequent years, in Abul Fazal’s “Ain-E-Akbari”, is still

prevalent in different forms all over the country.15

Rural local governments during the British rule were not given enough functions, authority, or

resources. Those were not truly representative and were often dominated by government

functionaries. Mention of local governments in the Indian Constitution, as it was adopted in

1950, can be found in the chapter on Directive Principles of State Policy, which stated that the

14

C. Kumar, ‘Idea of Decentralisation and Integral Humanism in India’, Asian Journal of Multidisciplinary Studies,

Volume 3, Issue 7, July 2015 available at http://ajms.co.in/sites/ajms2015/index.php/ajms/article/view/1242, (Last

Visited on 1st Jan, 2016.

15 Local Governance System in Rural India (Panchayati Raj) and the 73rd

Amendment of the Constitution, available

at http://www.arthapedia.in/index.php?title=Local_Governance_system_in_rural_India-

(Panchayati_Raj)_and_the_73rd_amendment_of_the_Constitution, (Last Visited on 1st Jan, 2016)



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states should enact appropriate laws for constituting Panchayats, enabling them to function as

local governments.16

In 1957, a Committee headed by Balwant Rai Mehta was set up to assess the success of the

Community Development Programmes and National Extension Services launched in 1951 and

1952 (as well as other programmes) during the first five year plan. One of the most significant

recommendations of the Committee was the observation that in order to make various

development initiatives meaningful by ensuring that the benefits reach the targeted beneficiaries,

revival of Panchayats was necessary. The Committee felt that it was possible only for the

Panchayats to involve the primary stakeholders, i.e., the people, with developmental activities.17

In the wake of this recommendation, many states enacted new Panchayat Acts thereby

substituting the old ones inherited from the British. It is in such a manner that the first generation

of Panchayats came into being in the country, with two tiers in some states, three tiers in many

and even four tiers in a few. First generation Panchayats, which were apolitical, were not very

successful for a variety of reasons. Most important among them were: ambiguous laws about

exact roles, functions and authority, insufficient manpower and a general lack of resources.18

In 1957, a historic breakthrough in establishing Panchayati Raj was effected through the Report

of the Balwantrai Mehta Committee which recommended: ―Public participation in community

works should be organized through statutory representative bodies. It was opined that without an

agency at the village level that could represent the entire community, assume responsibility and

provide the necessary leadership for implementing development programmes, real progress in

rural development could not come about at all.19

The Committee report, which was submitted in 1957, was adopted by different states with

suitable variations. Among the states which were the first to jump into the new venture of

‘democratic centralizations’ (as this experiment came to be christened in the Committee Report)

16

2nd Administrative Reform Commission , available at: http://arc.gov.in/6-1.pdf, local governance - , (Last Visited

on 2nd

January, 2016 17

Decentralized Planning - Ministry Of Personnel & Training, available at

http://persmin.gov.in/otraining/UNDPProject/undp_modules/Decentralized%20Planning%20(DLM).pdf, (Last

Visited on 2nd

January, 2016). 18

Supra n. at 15 19

Report of the Working Group on “Panchayati Raj Institutions and Rural Governance”



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were Andhra Pradesh and Rajasthan. It may also be said that these two states adopted the system

more or less on the same model as suggested by the report. From the time that the Panchayati

Raj was established, till date, there has been a plethora of literature, research studies and official

reports on different aspects of the same –starting from the very basic like the suitability of the

nomenclature “Panchayati Raj”, to more intricate problems of planning at locals levels and

linkage with the states and national leadership. Most of the states have followed the three-tier

system as recommended by the Mehta committee report. The village assembly has been given

the statutory recognition in most of the states. In Bengal, the panchayat union which was formed

for a group of panchayats has been retained as an intermediate tier between the village panchayat

and the panchayat samiti, thus giving the state a 4-tier system.20

Subsequently, the National Development Council (NDC) endorsed the basic principles of

democratic decentralization enunciated in the Balwantrai Mehta report and made it a prerogative

of the States to work out the structures suitable to each State. It was during this period that the

term “Panchayati Raj” gained currency as a process of governance organically linking the will of

the people from the Gram Sabha to the Lok Sabha. Prime Minister Nehru inaugurated the 3-tier

Panchayati Raj in Nagaur, Rajasthan on October 2, 1959.21

The Jayaprakash Narayan Committee spoke of the contradictory positions developing within the

government in respect of Panchayati Raj, pointing out that after having accepted Panchayati Raj

as the agency responsible for planning and execution of plans, there is no longer any valid

reason for continuing individual allocations subject-wise even to serve as a guide.

One of the principal reasons for the marginalized groups not receiving adequate benefits despite

50 years of planning and development, has been the lack of opportunity for their economic

development and social justice through decentralized institutions. Even in states where legal

provisions for SCs and STs existed, or were promulgated, they were not able to get

representation in the panchayats to any significant extent. Elections to panchayats were not held

regularly in many states. Bihar is an extreme case where panchayat elections were held as far

back as in 1978. But the 73rd Amendment to the Constitution, vide its Article 243D sought to

20 B. M. Verma, Rural Leadership in a Welfare Society,(Mittal publications, 1994) pg 40. 21

Roadmap for the Panchayati Raj (2011-16): An All India Perspective Ministry of Panchayati Raj Version date:

Feb., 2011, available at: http://www.indiaenvironmentportal.org.in/files/panchayat%20Roadmap.pdf, (Last Visited

on 2nd

Jan, 2016).



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change the dismal picture as seats and offices were reserved for SCs and STs, including women

belonging to these groups. At all three tiers of the panchayati raj system, Article 243E requires

regular elections to the Panchayat every 5 year.

However, on the recommendation of the Ashok Mehta Committee (1977), most of the states

provided for political participation in Panchayat elections. This, coupled with decisions of

several states to involve Panchayats in the developmental initiatives and delivery of various

services to the rural people, made the Panchayats somewhat active and vibrant. Examples of

West Bengal, Kerala and Karnataka can be referred to in this respect.

Admittedly, even after this, Panchayats did not evolve as peoples’ institutions and largely failed

to deliver what was expected of them. L.M. Singhvi Committee in 1985 opined that in order to

make the Panchayats effective, such institutions should be declared as units of local governments

and there should be a Constitutional mandate upon state governments to ensure that the

Panchayats function as such.

The idea of decentralized planning was mooted in 1977 and 1983 by M. L. Dantwala and C. H.

Hanumantha Committees respectively. Both the Committees recommended that the basic

decentralized planning has to be done at the district level.22

With a view to review the existing administrative arrangements for rural development and

poverty alleviation programs and also to recommend appropriate structural mechanism, a twelve

member Committee under the Chairmanship of Dr. G. V. K. Rao was constituted in 1985. The

Committee suggested for the continuance of the three-tier structure and urged that elections to

those bodies should be held regularly. It suggested that the Zilla Parishad should become the

main body for management of all development programs at the district level. It also

recommended that a post of District Development Commissioner (DDC), higher in status than

that of District Collector, should be created in order to co-ordinate all the developmental

activities in the district. Besides, the Committee emphasized that the block development office

should be the sheet anchor of the entire rural development process. The Chief Executive Officer

22

From Decentralisation of Planning to People's Planning:Experiences of the Indian states of West Bengal And

Kerala, available at http://www.cds.ac.in/krpcds/charvak.pdf , (Last Visited on 2nd

Jan, 2016)



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of the block may be designated as Assistant Development Commissioner (ADC), who should be

in status of Sub-divisional Officer.23

Again, in 1986, another Committee under the Chairmanship of Laxmi Mal Singhvi was

appointed to prepare a Concept Paper for discussion at a national workshop to review the

growth, present status and functions of PRIs. The Committee advocated that Panchayati Raj

should primarily be viewed as the local self government system and should be strengthened

accordingly. It is the foundation stone for the country’s democratic political system. The existing

constitutional provision in Article 40 is too general and also discretionary. It cannot give a firm

basis for Panchayati Raj, which has been weakened due to neglect and unscrupulous politicking

in various states. The Committee advocated constitutional recognition to strengthen Panchayati

Raj, which became the basis for the 64th Constitutional Amendment Bill.24

In 1988, a Sub-committee of the Parliamentary Consultative Committee, attached to the Ministry

of Personnel, Public Grievances and Pensions was set up under the Chairmanship of P. K.

Thoungon. The Committee felt the need for constitutional recognition of PRIs. It also

recommended a three-tier structure for Panchayati Raj with District Panchayat at the top, Mandal

Panchayat in the middle and Village Panchayat at the bottom level. The Sub-committee

suggested the formation of a Planning and Coordination Committee at the state level under the

Chairmanship of the Planning Minister and Presidents of the Zilla Parishad were to be the

members of the Committee. It recommended that the term of Panchayat Raj bodies should be for

a period of five years and a suitable constitutional provision must be made to ensure timely and

regular elections.

In addition to this, the Sub-committee also recommended the appointment of a separate

Panchayati Raj Judicial Tribunal to adjudicate controversies. It suggested the system of

reservation for all the three tiers of Panchayati Raj bodies as per population. Along with this, not

less than two women should be members of Panchayati Raj bodies at each level. But for bodies

23

Report of the Committee on Administrative Arrangements for Rural Development and Poverty Alleviation

Programmes Chairman: G.V.K. Rao, (1985) 24

Strengthening Government’s Action Against Child Labour: The Milestones Dharmendra Kumar Mishra, Odisha

Review May - 2012, available at: http://odisha.gov.in/e-magazine/Orissareview/2012/May/engpdf/19-24.pdf, (Last

Visited on 2nd

Jan, 2016)



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having membership up to five, there would be only one place reserved for a woman member. As

regard the finance, the subcommittee recommended that the Finance Commission should lay

down the criteria and guidelines whereby resources would be allocated to the districts. Unlike in

the past, this sub Committee made some path breaking suggestions.25

Along with the Seventy Third Constitutional Amendment Act, the formation of a separate

Ministry of Panchayati Raj (MoPR) in May 2004 at the Centre was another major step to carry

forward the process of democratic decentralization. The Ministry was set up primarily to oversee

the implementation of Part IX of the Constitution, inserted by the Seventy third Amendment Act

1992, the Panchayat's Extension to the Scheduled Areas (PESA) Act 1996, and Article 243ZD of

Part IX-A relating to DPC.26

Although the Panchayats have historically been an integral part of rural life in India, these Acts

have institutionalized the PRIs at the village, intermediate and district levels as the third tier of

the government.

The idea which created the 73rd Amendment was not a response to pressure from the grassroots,

but rather, to an increasing recognition that the institutional initiatives of the preceding decade

had not delivered, that the extent of rural poverty was still much too large and thus, the existing

structure of government needed to be reformed. It is interesting to note that this idea evolved

from the Centre and the state governments. It was a political drive to see PRIs as a solution to

the governmental crisis that India was experiencing. The changes introduced by the 73rd

Amendment of the Constitution have given Panchayati Raj Institutions a constitutional status as

a result of which it has become a permanent institution within the Indian political system as a

third Government.27

On a careful perusal of this amendment, it appears that under Article 243B of the Constitution, it

has been mandated that there shall be Panchayat at the village, intermediate and district levels in

accordance with the provisions of Part IX of the Constitution. Article 243C provides for

composition of Panchayat which contemplated the post of Chairperson. Article 243D provides

for reservation of seats and 243E provides for duration of Panchayat. Article 243F enumerates

25

Available at: http://shodhganga.inflibnet.ac.in/bitstream/10603/16184/6/08_chapter%202.pdf 26

Available at: http://shodhganga.inflibnet.ac.in/bitstream/10603/16184/6/08_chapter%202.pdf 27

Available at: https://cseindiaportal.wordpress.com/2012/10/04/evolution-of-local-self-government/



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the grounds of disqualification of membership of the Panchayat. Article 243G prescribes the

powers, authority and responsibilities of Panchayat. There are several other provisions relating to

powers of the Panchayat to impose taxes and for the constitution of the Finance Commission in

order to review the financial position of the Panchayat. The accounts of the Panchayat are also to

be audited as per the constitutional mandate under Article 243J. There are detailed provisions

for elections of Panchayat under Article 243K. Article 243O imposes the bar on interference by

Courts in electoral matters of the Panchayat.

In this connection particular reference may be made to the provision of Article 243G of the

Constitution, which is set out below:

243G-Powers, authority and responsibilities of Panchayat: Subject to the provisions of this

Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and

authority that may be necessary to enable them to function as institutions of self- government

and such law may contain provisions for the devolution of powers and responsibilities upon

Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with

respect to-

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be

entrusted to them including those in relation to the matters listed in the Eleventh Schedule."28

The Constitutional (73rd Amendment) Act, passed in 1992 by the Narasimha Rao government,

came into force on April 24, 1993. It was meant to provide constitutional sanction to establish

“democracy at the grassroots level as it is at the state level or national level”. Its main features

are as follows:

• The Gram Sabha or village assembly as a deliberative body to decentralise governance has

been envisaged as the foundation of the Panchayati Raj System.73rd Amendment of the

Constitution empowered the Gram Sabhas to conduct social audits in addition to its other

functions.

28

The Constitution of India



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12

• A uniform three-tier structure of panchayats at village (Gram Panchayat — GP), intermediate

or block (Panchayat Samiti — PS) and district (Zilla Parishad — ZP) levels.

• All the seats in a panchayat at every level are to be filled by elections from respective

territorial constituencies.

• Not less than one-third of the total seats for membership as well as office of chairpersons of

each tier has to be reserved for women.

• Reservations for weaker castes and tribes (SCs and STs) have to be provided at all levels in

proportion to their population in the panchayats.

• To promote bottom-up-planning, the District Planning Committee (DPC) in every district has

been accorded constitutional status.

• An indicative list of 29 items has been given in Eleventh Schedule of the Constitution.

Panchayats are expected to play an effective role in planning and implementation of works

related to these 29 items.29

The Eleventh Schedule lists the following 29 subjects:

(1) Agriculture including agricultural extension.

(2) Land improvement, implementation of land reforms, land consolidation and soil conser-

vation.

(3) Minor irrigation, water management and watershed development.

(4) Animal husbandry, dairying and poultry.

(5) Fisheries.

(6) Social forestry and farm forestry.

(7) Minor forest produce.

(8) Small scale industries, including food-processing industries.

29

R.Suryanarayana Reddy, The State of Panchayats, , Centre Head, CDP&AAMR-APARD



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(9) Khadi, village and cottage industries.

(10) Rural housing.

(11) Drinking water.

(12) Fuel and fodder.

(13) Roads, culverts, bridges, ferries, waterways and other means of communication.

(14) Rural electrification, including distribution of electricity.

(15) Non-conventional energy sources.

(16) Poverty alleviation programme.

(17) Education including primary and secondary schools.

(18) Technical training and vocational education.

(19) Adult and non-formal education.

(20) Libraries.

(21) Cultural activities.

(22) Markets and fairs.

(23) Health and sanitation, including hospitals, primary health centres and dispensaries.

(24) Family welfare.

(25) Women and child development.

(26) Social welfare, including welfare of the handicapped and mentally retarded.



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(27) Welfare of the weaker sections, and in particular, of the Scheduled Castes and the

Scheduled Tribes.

(28) Public distribution system.

(29) Maintenance of community assets.30

30

11th schedule, The Constitution of India



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SUPREME COURT OF INDIA

I. Secretary, Sarvodaya Educational Society v. Ginjala Panasaiah and Ors.

1. STATE: Andhra Pradesh

2. COURT: Supreme Court

3. BENCH: Two judges bench

4. NAME OF BENCH: Justice V.N. Khare and Justice N. Santosh Hegde

5. CASE NAME: Secretary, Sarvodaya Educational Society v. Ginjala Panasaiah and Ors.

6. CASE NO.: C.A. No. 2078 of 2000 (SLP (C) No. 9022 of 1999)

7. DATE OF JUDGMENT: 13.03.2000

8. NAME OF APPELLANT/S: Secretary, Sarvodaya Educational Society

9. NAME OF RESPONDENT/S: Ginjala Panasaiah

10. CASE TYPE: Special Leave Petition.

11. MAIN LAW POINTS INVOLVED: Whether the Gram Panchayat can be permitted to sell the

impugned property through auction (as directed by the High Court)?

12. GROUNDS OF CHALLENGE: Power of Gram Panchayat to sell the impugned property

through auction (as directed by the High Court)

13. REFERENCE TAKEN FROM OTHER CASE/S: None

14. AREA OF DISPUTE: Powers

15. AREA OF DISPUTE CATEGORY - Dispute on Powers of State/ZP/BP/GP

16. PROVISIONS OF LAW INVOLVED: AP Panchayat Laws (Amendment) Act; Constitution

of India – Part IX.



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17. GIST OF THE CASE: The Vakalapudi Gram Panchayat (Andhra Pradesh), by a resolution

decided to use a piece of land vested in it for the purposes of a public park and later by a

subsequent resolution, decided to settle the land in favour of the appellant, for the purpose of

building a school. The two resolutions were challenged and a single bench of the High Court

struck them down, as such a transfer was against the Rules governing the transfer of Panchayat

owned land. It further held that such a transfer should take place only through a public auction.

An appeal against the aforesaid decision was dismissed. Hence, the case came before the

Hon’ble Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: It was held that the Rules did not permit

the land owned by Gram Panchayat to be transferred via public auction with a motive to earn

profit. The prime consideration while dealing with such land is that of public interest. Hence, the

appeal was allowed and the part of the High Court’s decision which allowed transfer of

Panchayat owned land through public auction was set aside.

19. RATIO DECIDENDI: The property vesting in a Gram Panchayat, if to be sold through a public

auction, should be sold while keeping the public interest as paramount.

20. OBITER DICTA: The acquisition and transfer of immovable property which vests in the Gram

Panchayat are governed by the rules framed under Gram Panchayat Act. Any property including

any vacant land which vests in Gram Panchayat is meant to be utilised for public purposes and

for the benefit of the general public of the Gram Panchayat. In fact, the public is the only

beneficiary of the property that vests in the Gram Panchayat.



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II. Sakthi Coop. Industrial Estate v. Kursheed Begum and Ors.

1. STATE: Tamil Nadu


3. BENCH: Two Judges Bench

4. NAME OF BENCH: K. Ramaswamy and G.T. Nanavati, JJ.

5. CASE NAME: Sakthi Coop. Industrial Estate v. Kursheed Begum and Ors.

6. CASE NO.: C.A. No. 16944 of 1996 (SLP (C) No. 23687 of 1996)


8. NAME OF APPELLANTS: Sakthi Cooperative Industrial Estate

9. NAME OF RESPONDENTS: Kursheed Begum


11. MAIN LAW POINTS INVOLVED: Whether the roads built by a private entity with

Panchayat’s permission were private property?

12. GROUNDS OF CHALLENGE: Whether the roads built by a private entity with Panchayat’s

permission were private property?

13. REFERENCE TAKEN FROM OTHER CASE/S: None.

14. AREA OF DISPUTE: Property

15. AREA OF DISPUTE CATEGORY - Dispute over ownership of Buildings and Lands

16. PROVISIONS OF LAW INVOLVED: Section 175 of the Tamil Nadu Panchayats Act, 1958;

Constitution of India – Part IX.

17. GIST OF THE CASE: Sakthi Cooperative Industrial Estate (appellant) formed a cooperative

society of an industrial estate, after getting approval for the layout plan from the Gram

Panchayat in respect of Surveys Nos. 74/1, 2, 3, 78/1, 3, 79/1A1 etc. Certain roads were also



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built therein in terms of the layout. The Appellant claimed complete private ownership of the

roads, arguing that the cooperative society was set up under the Cooperative Societies Act, 1912

and hence the land no longer vested in the Gram Panchayat. The Panchayat opposed this claim.

The rights of the Panchayat over the impugned roads were upheld by the Madras High Court.

Hence, an appeal was filed in the Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Court rejected the claim of the

appellant. It took note of Section 175 of the Tamil Nadu Panchayats Act, 1958, as per which

“All roads, markets, wells, tanks, reservoirs and waterways vested in or maintained by a

Panchayat or a Panchayat Union Council shall be open to the use and enjoyment of all persons,

irrespective of their caste or creed." It was thus held that the roads formed by the appellant-

Society stood vested in and belonged to the Gram Panchayat. The appeal, thus, was dismissed.

19. RATIO DECIDENDI: The roads built after approval by the Gram Panchayat are not an

exclusive property of the private entity. They belong to the Panchayat and remain open to public

use.

20. OBITER DICTA: ---



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III. State of Rajasthan and Anr. v. Kulwant Kaur

1. STATE: Rajasthan



4. NAME OF BENCH: S.B. Sinha and P.P. Naolekar, JJ.

5. CASE NAME: State of Rajasthan and Anr. v. Kulwant Kaur

6. CASE NO.: C.A. No. 694-695 of 2005


8. NAME OF APPELLANT/S: State of Rajasthan

9. NAME OF RESPONDENT/S: Kulwant Kaur

10. CASE TYPE: Appeal (Civil)

11. MAIN LAW POINTS INVOLVED:

• Whether the Respondent should be allowed to continue in the services, in the absence of the

requisite qualifications being possessed by her.

• Whether an interim stay on the termination orders imparted validity to her continuation in the

services.

• Whether she should be allowed to continue in equity, as she had been continuing therein

pursuant to the interim orders passed by the High Court for a long time.

12. GROUNDS OF CHALLENGE: Legality of allowing the Respondents to continue in the

services, in the absence of the requisite qualifications being possessed by her.

13. REFERENCE TAKEN FROM OTHER CASE/S:

• Mohd. Sartaj and Anr. v. State of U.P. and Ors. (2006) 2 SCC 315;

• State of Rajasthan v. Shyam Lal Joshi and Ors, (1994) IILLJ656SC;



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• Andhra Kesari Educational Society v. Director of School Education 1990 SC 592 (6)

• Suresh Pal v. State of Haryana (SC)-1986-11-33

14. AREA OF DISPUTE: Personnel System

15. AREA OF DISPUTE CATEGORY : Appointment Related

16. PROVISIONS OF LAW INVOLVED: The Rajasthan Panchayat Samitis & Zila Parishad

Service Rules, 1959 (and later the amended Rules of 1996) 1958; Constitution of India – Part IX.

17. GIST OF THE CASE: The Rajasthan Panchayat Samitis & Zila Parishad Service Rules, 1959

(and later the amended Rules of 1996) laid down the requisite qualification for the post of

primary school teacher to be ‘senior secondary with basic STC training.’ (Basic STC is two year

basic short training certificate course which makes the teacher eligible to teach all subjects). Ms.

Kulwant Kaur (respondent) had not passed the Senior Secondary Examination and had obtained

a diploma in tailoring. Nevertheless, she was appointed as a Grade-III teacher in the year 1983

by the Panchayat Samiti, Padampur. In 1987 a termination order was passed against the

Respondent, relying on a circular issued by the Director, Primary and Secondary Education,

which directed the termination of services of temporary teachers who possessed merely a

diploma in Tailoring. However, a writ petition was filed by the respondent wherein a stay on that

order from the Hon’ble High Court was obtained, and the respondent was accordingly allowed to

continue with her services. A second order of termination was served upon the Respondent in the

year 1994. This was after the decision given by the Hon’ble Supreme Court in State of Rajasthan

v. Shyam Lal Joshi and Ors., (1994), IILLJ656SC, which held that the holders of NTCS can be

appointed only as teachers of the particular craft they were trained in, and not as general

teachers. The Respondent filed another writ petition and obtained an interim stay on this order

also and continued with the service. A single Bench of the High Court dismissed both the

aforesaid writ petitions. However, the division bench reversed the order, further directing the

State Government to give requisite training to the Respondent and regularize her services. The

special leave petition in the Hon’ble Supreme Court was filed against this order. During the

pendency of the case in the Supreme Court, the Respondent underwent the requisite STC course,

but the successful completion of same was subject to her qualifying the Senior Secondary Exam.



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18. OPERATING PORTION OF THE JUDGMENT: The Supreme Court held that since the

respondent did not hold the requisite qualifications for the post, the two termination orders

against her were legally valid. Also, it was opined that the granting of interim stay on the orders

by the High Court did not imply that she was validly holding the post. The decision of the High

Court was set aside and the appeal was allowed. The Respondent was held as not eligible to

continue with the post.

19. RATIO DECIDENDI: Possession of an essential educational qualification is mandatory for

obtaining the right to continue in the post.

20. OBITER DICTA: a) ‘Actus Curiae neminem gravabit’, implying that the act of court shall

prejudice no one. Hence, the High Court could not have directed to set aside the order for

termination of service (only an interim stay was granted). The High Court did not arrive at a

finding that the Respondent was possessed of basic essential qualification, both as regards the

general education as well as the training. b) The matter would have been different had she

acquired the requisite qualification prior to the issuance of order of termination in 1994.

Admittedly, by that time, she had not completed her training. Even at that point of time, she was

not possessed of the Short Training Certificate. Her services had, thus, rightly been terminated

and in that view of the matter, purported acquisition of qualification by her in 1996 would be of

no significance.



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IV. Gram Panchayat v. Jagir Singh

1. STATE: Punjab



4. NAME OF BENCH: Anil R. Dave and Kurian Joseph, JJ.

5. CASE NAME: Gram Panchayat v. Jagir Singh

6. CASE NO.: C.A. No. 10562/2014 (S.L.P. (Civil) No. 35854 of 2009)


8. NAME OF APPELLANT/S: Gram Panchayat

9. NAME OF RESPONDENT/S: Jagir Singh

10. CASE TYPE: Special Leave Petition

11. MAIN LAW POINTS INVOLVED: Whether the impugned land was a private property of the

Respondent or a property of the Gram Panchayat which was encroached upon by the

Respondent.

12. GROUNDS OF CHALLENGE: The nature of the land was that of a public street. It was

encroached upon by the Respondent. There was no provision for regularization and the

Respondent was required to be evicted.


14. AREA OF DISPUTE: Property

15. AREA OF DISPUTE CATEGORY – Dispute over ownership of Buildings and Lands

16. PROVISIONS OF LAW INVOLVED: Constitution of India- Part IX.

17. GIST OF THE CASE: The case involved a disputed piece of land (a street), ownership of

which was claimed by both the parties. The Panchayat claimed it to be a public street belonging



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to the Panchyat; while the Respondent claimed it to be a private street leading to his house and

constructed on a land bought by him from a private person. However, the competent authority

passed an eviction order against him. Aggrieved, a Writ Petition was filed by the Respondent in

the High Court. A single Bench of the Court ruled in his favour, stating that the Panchayat was

unnecessarily trying to create problems for him. He had constructed a house and as per the

report, had not encroached upon any street. Further he was given the option to deposit a

compensation amount at twice the Collector’s rate, for the land in his possession in the accounts

of the Gram Panchayat. This order was passed in equity considering that the Petitioner had

constructed a house and was ready to compensate the Gram Panchayat for any land, which is

found to be encroached by him but was not part of any street. The Respondent accordingly

offered compensation to the Panchayat, which the latter accepted and the same was recorded by

the single judge. Even after this, the Panchayat filed an appeal in the High Court. The Division

Bench dismissed the appeal, holding it to be frivolous and imposed a cost of Rs. 10,000/- on the

Panchayat. Aggrieved by this, the Panchayat appealed to the Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Apex Court noticed the narrow width

of the street while emphasising that it is unlikely to be a public street. The path also led to a well.

The owner of the well and the original landowner had no grievances. The Court also noticed that

demolition of the house and restoring the alleged pathway would not benefit anyone. The

petitioner had made some encroachments, which might not be deliberate. Hence in the interest of

justice, the court ordered status quo to be maintained and directed the Panchayat to accept the

compensation made by the Respondent. The appeal was partly allowed. The ownership of the

impugned street was to remain vested in the Respondent, and was not transferred to the

Petitioner. The cost imposed on the Panchayat by the High Court was vacated. The Respondent

was asked to bear the litigation expenses of the Panchayat (Rs. 35,000/-).

19. RATIO DECIDENDI: In the interest of justice, the dispute was given a quietus. Without

treating it as a precedent, the Panchayat was directed to acknowledge the deposit of double the

market value already made by the Respondent as damages for the alleged encroachment.

20. OBITER DICTA: The Appellant-Gram Panchayat could not be said to be acting without bona

fides when they took appropriate action in accordance with law.



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V. Ram Beti v. District Panchayat Raj Adhikari and Ors.

1. STATE: Uttar Pradesh



4. NAME OF BENCH: S.C. Agrawal and S. Rajendra Babu, JJ.

5. CASE NAME: Ram Beti v. District Panchayat Raj Adhikari and Ors.

6. CASE NO.: Civil Appeal Nos. 4675, 5541-48 and 5815-42 of 1997 and SLPs (C) Nos. 23084,

85, 89 and 90 of 1997.


8. NAME OF APPELLANT/S: Ram Beti

9. NAME OF RESPONDENT/S: District Panchayat Raj Adhikari

10. CASE TYPE: Special Leave Petitions and Civil Appeals.

11. MAIN LAW POINTS INVOLVED: Whether Section 14 of the U.P. Panchayat Raj Act, 1947

is constitutionally valid, or not.

12. GROUNDS OF CHALLENGE:

• That the provision is arbitrary and hence violative of Article 14 of the Constitution.

• That the provision is inconsistent with the concept of democracy, which is one of the Basic

Features of the Constitution.

• That since the Gram Pradhan is elected by all the members of the Gram Sabha, he should be

removed only when he loses the trust reposed in him, and not by a much smaller body of the

Gram Panchayat.


• Ram Beti v. District Panchayat Raj Adhikari, AIR1998SC1222;



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• Bankey Lal v. State of U.P., 1971CriLJ1540,1997;

• Mohan Lal Tripathi v. District Magistrate, Rai Bareilly and Ors., [1992] 3SCR338

14. AREA OF DISPUTE: Removal

15. AREA OF DISPUTE CATEGORY –Suspension of Sarpanchand Other members

16. PROVISIONS OF LAW INVOLVED: Section 14 of the U.P. Panchayat Raj Act, 1947;


17. GIST OF THE CASE: Section 14 of the U.P. Panchayat Raj Act, 1947 gives power to the

Gram Panchayat to remove the Gram Pradhan from his post, if so decided by at least two-thirds

of the Panchayat members present and voting. Its Constitutional validity was challenged in a

number of petitions filed by such Gram Pradhans against whom action for removal had been

taken. They argued that Section 14 was inconsistent with the concept of democracy, and thus,

arbitrary and violative of Article 14 of the Constitution. Since they had been elected by all

members of the Gram Sabha, they could be removed only if they lose confidence of such

members. After losing the case in the High Court, the appellants appealed to the Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Court observed that since the

members of the Gram Panchayat are the elected representatives of the members of the Gram

Sabha, the act of removal under Section 14 is actually carried out by the Gram Sabha. Moreover,

the veracity of the actions of the Gram Pradhan could only be known by the Gram Panchayat.

The validity of Section 14 of U.P. Panchayat Raj Act, 1947 was upheld. The petitions were

dismissed.

19. RATIO DECIDENDI: The removal of a Pradhan by two-thirds members of the Gram

Panchayat, who are also elected representatives of the members of the Gram Sabha, would be

equivalent to such a removal by the members of the Gram Sabha itself. An arbitrary function of

a Pradhan in disregard to the statute or his acting contrary to the interests of the electorate could

be known to the members of the Gram Panchayat only and, in the circumstances; it is proper that

the members of the Gram Panchayat are empowered to take action for removal of the Pradhan.

20. OBITER DICTA: The considerations which weighed for upholding the validity of Subsection

(2) Section 87-A of the U.P. Municipalities Act, 1916 relating to the removal of the President of



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a Municipal Board in in Mohan Lal Tripathi v. District Magistrate, Rai Bareilly and Ors.,

[1992] 3 SCR338 are, also applicable to the removal of the Pradhan of the Gram Sabha. Just as

the Municipal Board is visualised as a body entrusted with the responsibility to keep a watch on

the President, whether elected by it or by the electorate, so also that Gram Panchayat is

visualised as a body entrusted with the responsibility to keep a watch on the Pradhan who is not

elected by it and is elected by the members of the Gram Sabha. By way of safeguard against any

arbitrary exercise of the power of removal, it is essential that the motion must be passed by a

majority of two-thirds of the members present and voting.



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VI. Surinder Kaur v. State of Punjab & Ors.

1. STATE: Punjab



4. NAME OF BENCH: K. Ramaswamy and G.B. Patnaik, JJ.

5. CASE NAME: Surinder Kaur v. State of Punjab & Ors

6. CASE NO.: Civil Appeal NO. 4393 of 1996


8. NAME OF APPELLANT/S: Surinder Kaur

9. NAME OF RESPONDENT/S: State of Punjab, Sarpanch of Dialgarph village, Gurdaspur

District, Punjab (Tara Singh).

10. CASE TYPE: Civil Appeal


• Whether or not, the election for the post of Sarpanch was legally valid.

• Whether or not the Appellant was denied the opportunity to file her nomination papers.


• That the impugned election was not valid.

• That the appellant was illegally denied the opportunity to contest the elections.

• That the declaration of the Respondent as the Sarpanch, despite of the stay order of the High

Court in the matter, was not lawful.




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14. AREA OF DISPUTE: Elections

15. AREA OF DISPUTE CATEGORY: Eligibility of Candidates

16. PROVISIONS OF LAW INVOLVED: Constitution of India – Part IX.

17. GIST OF THE CASE: The appellant challenged the validity of the elections conducted in

January 1993 for the office of Sarpanch. She claimed of having been prevented from filing her

nomination papers, as Tara Singh (one of the Respondents) snatched her papers and tore them

off. Also her husband was detained by the police. No action was taken by the police and the

Magistrate despite her complaints. Thereafter, she approached the High Court, which granted a

stay in the matter. Despite of this fact, Tara Singh was declared as the elected Sarpanch. The

Respondent, on the other hand, denied that the appellant had approached to file the nomination

papers. Aggrieved by this, the Appellant filed a Writ Petition in the High Court, but sought no

solace, leading up to the filing of the same before the Hon’ble Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Court found it difficult to

believe that the appellant had not filed the nomination papers. It was noted that she had been the

Sarpanch from the last fifteen years (when the case was filed), and it could be reasonably

inferred that she had the intention to contest the impugned elections also and had taken steps to

file the nomination papers in time. It was thus held that the elections were not legally valid. The

election of the Respondent as the Sarpanch was set aside and the authorities were directed to

conduct re-election within one month of the receipt of the order. Till such re-election was held

the Respondent was allowed to continue as the Sarpanch.

19. RATIO DECIDENDI: Unlawfully preventing a contestant from contesting the elections falls in

direct violation of the law and on this ground itself, the election can be set aside.




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VII. Boddula Krishnaiah and another v. State Election Commissioner, A.P. & Ors.



3. BENCH: Three Judges Bench

4. NAME OF BENCH: K. Ramaswamy, S.P. Bharucha and K.S. Paripoornan, JJ.

5. CASE NAME: Boddula Krishnaiah and another v. State Election Commissioner, A.P. & Ors.

6. CASE NO.: Civil Appeals Nos. 5283-84 of 1996.


8. NAME OF APPELLANT/S: Boddula Krishnaiah

9. NAME OF RESPONDENT/S: State Election Commissioner, A.P.



• Whether or not the High Court was justified in admitting the writ petition.

• Whether or not, the direction to allow the Respondents to exercise their franchise after the polls

were over, was legally correct.


• That once the election process is set in motion, any irregularity in its conduct would be the

subject matter of an election petition.

• That Article 243 O of the Constitution and A.P. Panchayat Raj Act, 1994 bar the jurisdiction of

the court in the matters related to elections.


• N.P. Punnuswami v. Returning Officer, Namakkal Constituency, [1952]1SCR218;



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• Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, [1985] Supp. 1 SCR 493;

• State of U.P. v. Pradhan, Sangh Kshettra Samiti [1995]1SCR584;

• Meghraj Kothari v. Delimitation Commission 1967 AIR 669

14. AREA OF DISPUTE: Election

15. AREA OF DISPUTE CATEGORY –Cancellation

16. PROVISIONS OF LAW INVOLVED: A.P. Panchayat Raj Act, 1994 and Article 243 O of the

Constitution

17. GIST OF THE CASE: Owing to deletion of their names from the electoral roles, the

Respondents could not exercise their franchise in the elections of the Gram Panchayat. They

approached the High Court, which issued an interim order not to declare the election results. It

further directed the Respondents to exercise their franchise after the polls were over. The

Appellant challenged this decision in appeal before the Hon’ble Supreme Court, stating that as

per the A.P. Panchayat Raj Act, 1994 and Article 243 O of the Constitution, the proper remedy

was to file an election petition and the High Court should not have interfered in the matter. On

the other hand, the Respondents argued that the Writ Petitions before the High Court were filed

much before the notification of the election and hence, the appropriate forum was approached.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Court reiterated the

observations made in three other cases, namely: N.P. Punnuswami v. Returning Officer,

Namakkal Constituency and Ors., [1952]1SCR218, Lakshmi Charan Sen and Ors. Etc. v. A.K.

M. Hassan Uzzaman and Ors., [1985] Supp. 1 SCR 493 and State of U.P. and Ors. v. Pradhan,

Sangh Kshettra Samiti and Ors., [1995]1SCR584, in which it was stated that the irregularities

vitiating the election should be brought before the election tribunal, and the High Court, in

exercise of its writ jurisdiction, should not pass any order which interferes or postpones the

election process. Thus, the order of the High Court was held not legally valid. The petition

before the High Court was held to be maintainable, but its direction to allow the Respondents to

exercise their franchise after the polls were over, was adjudged to be wrong, as it would stall the

election process. The defeated candidate was free to file an election petition in this matter.



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19. RATIO DECIDENDI: There is a constitutional bar on interference with the election process

except by an election petition. Once an election process has been set in motion, though the High

Court may entertain a petition, it would not be justified in interfering with the election process,

in particular when the election has already been held.

20. OBITER DICTA: The aggrieved persons can still challenge the veracity of the election via an

election petition.



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VIII. M.V. Venkataramana Bhat v. Returning OFficer and Tahsildar & Ors.

1. STATE: Karnataka



4. NAME OF BENCH: K. Ramaswamy and R.M. Sahai, JJ.

5. CASE NAME: M.V. Venkataramana Bhat v. Returning OFficer and Tahsildar & Ors.

6. CASE NO.: Civil Appeal No. 3607 of 1993 (arising out of SLP (C) No. 269 of 1993)


8. NAME OF APPELLANT/S: M.V. Venkataramana Bhat

9. NAME OF RESPONDENT/S: Returning Officer and Tahsildar, Jayaprakash Rai, K.C.

Sadananda

10. CASE TYPE: SLP/CA


• Whether or not the Respondents acted mala fide in obtaining a stay on exercise of franchise of

the two nominated members.

• Whether the impugned election was materially affected by the acts of the Respondents, and

hence invalid.

12. CASE CHALLENGED:

• That the Respondents had acted in a mala fide manner and abused the process of the Court for

their own interests.

• That by the aforesaid actions, the election was materially affected, and is invalid.




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14. AREA OF DISPUTE NAME: Election

15. AREA OF DISPUTE CATEGORY: Cancellation

16. PROVISIONS OF LAW INVOLVED: Karnataka Zilla Parishad, Taluk Panchayat Samithi

Mandal Panchayats and Nyaya Panchayats Act 1983

17. GIST OF THE CASE: One day before the elections for Gram Pradhan were to be conducted,

Jayaprakash Rai (one of the Respondents) obtained an interim ex parte stay on the exercise of

franchise by the two nominated members of the Samiti, on grounds that their nomination from

the backward class was illegal. The Appellant lost the election to K.C. Sadananda (one of the

Respondents) by one vote. He challenged the election via a writ petition and claimed that since

the two nominated members intended to vote in his favour, they were deliberately prevented by

the Respondents to exercise their franchise. The High Court recorded that Jayaprakash did not

act in a bona fide manner, but dismissed the petition on other grounds. Hence, the Appellant

appealed to the Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Supreme Court affirmed the

aforesaid opinion of the High Court that Jayaprakash had not acted in a bona fide manner and

noted that he was not even a contestant in the election. He had filed the petition at the instance of

K.C.Sadanand, thus aiding him to win the election by abusing the court process. The Court also

agreed with the Appellant in saying that the actions of the Respondent had materially affected

that election. Further, since there was no provision in the Karnataka Zilla Parishad, Taluk

Panchayat Samithi Mandal Panchayats and Nyaya Panchayats Act 1983 to challenge the validity

of elections, and the election tribunal cannot examine the order of the High Court, the Supreme

Court found it appropriate by itself to declare the election invalid. It was thus set aside and re-

election was ordered.

19. RATIO DECIDENDI: The election Tribunal cannot go into the validity or correctness of the

order granted by the High Court which is the foundation to disable two members to exercise

their franchise. It should be remedied only in the proceedings under Article 226.




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34

IX. Jaenendrakumar Phoolchand Daftari v. Rajendra Ramsukh Mishra

1. STATE: Maharashtra



4. NAME OF BENCH: A.M. Ahmadi and N.G. Venkatachala, JJ.

5. CASE NAME: Jaenendrakumar Phoolchand Daftari v. Rajendra Ramsukh Mishra

6. CASE NO.: Civil Appeal No. 1303 of 1993


8. NAME OF APPELLANT/S: Jaenendrakumar Phoolchand Daftari

9. NAME OF RESPONDENT/S: Rajendra Ramsukh Mishra, Naib Tehsildar, Collector, Wardha



• Whether under Rule 10 of Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election

Rules, 1964, an express demand by any member of Panchayat is necessary to conduct elections

through secret ballot?

• Whether the Presiding Officer is required to allot symbols to the contesting candidates and get

the ballot papers to be used in such election printed with such symbols?

• Whether the High Court was correct in upholding the orders of the lower authorities and order

for a re-election.

12. CASE CHALLENGED:

• That an express demand was made by one of the members of Panchayat for voting by secret

ballot and hence Rule 10 was complied with.



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35

• That the presiding officer did not feel any need to allot symbols to the candidates as he was not

made aware of the fact of illiteracy of one of the members.

13. REFERENCE TAKEN FROM OTHER CASE/S: None.



16. PROVISIONS OF LAW INVOLVED: Rule 10 of Bombay Village Panchayats (Sarpanch and

Upa-Sarpanch) Election Rules, 1964

17. GIST OF THE CASE: Elections were held for the post of Sarpanch through secret ballot

system, in which the Respondent Rajendra Ramsukh Mishra lost to the Appellant by one vote.

The former filed an election petition before the Collector and argued that firstly, holding

elections by secret ballot in the absence of such demand made by anyone was in violation of

Rule 10 of Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964, and

secondly that one of the Panchayat members was an illiterate lady who had casted her vote by

the ballot which consisted of names of the contestants, and not symbols. The Collector and

subsequently the Election Commissioner set aside the election. The High Court too ruled in

favour of the Respondent and ordered fresh elections. Hence, the Appellant appealed to the

Supreme Court. The Appellant stated that the elections by secret ballot were held after such

demand was made by one of the Panchayat members. Secondly, the presiding officer did not feel

any need to allot symbols to the candidates as he was not made aware of the fact of illiteracy of

one of the members.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Court held that Rules 10 and

13 made it incumbent on the presiding officer to conduct the elections by show of hands, unless

a demand for ballot was made by any member. He did not have a choice in this matter. Further

on perusal of the facts of the case, the Court found that there was no demand made for voting by

ballot. It was also held that allotting election symbols was not necessary, but a special method

may be devised by the presiding officer to assist any illiterate member to vote through a ballot

(such as allotting cross and zero marks to the candidates instead of the names). Hence, the appeal

was dismissed and the orders of the lower authorities and the High Court were upheld.



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36

19. RATIO DECIDENDI: No requirement in a Rule can be regarded as superfluous unless such a

construction is likely to lead to an unwarranted anomaly.

20. OBITER DICTA: It is not necessary for the Presiding Officer, presiding over the election

meeting convened for electing Sarpanch or Upa-Sarpanch to allot symbols to contesting

candidates, even where there are illiterates among members who have to cast their votes by

ballot.



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37

X. State of Himachal Pradesh and Ors. v. Surinder Singh Banolta

1. STATE: Himachal Pradesh



4. NAME OF BENCH: S.B. Sinha and Markandey Katju, JJ.

5. CASE NAME: State of Himachal Pradesh and Ors. v. Surinder Singh Banolta

6. CASE NO.: Civil Appeal No. 5186 of 2006 (Arising out of SLP (C) No. 7381 of 2005) and

Civil Appeal No. 5187 of 2006 (Arising out of SLP (C) No. 22043 of 2005)


8. NAME OF APPELLANT/S: State of Himachal Pradesh

9. NAME OF RESPONDENT/S: Surinder Singh Banolta, Daulat Ram


11. MAIN LAW POINTS INVOLVED: Whether the Financial Commissioner had jurisdiction to

entertain the application challenging the election of the Respondent, on grounds of

disqualification, or not.


• That the Commissioner had the jurisdiction to entertain the application.

• That if the issue of disqualification had arisen before the election, the Authorised Officer would

have had the jurisdiction. However, since such issue arose after the election was over, the

Commissioner was the appropriate authority.


• Ashok Lanka v. Rishi Dixit AIR2005SC2821; M.P. Gopalakrishnan Nair v. State of Kerala

• AIR2005SC2053; Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action



391

38

• Group and Ors., AIR2006SC1489; Nathi Devi v. Radha Devi Gupta AIR2005SC648;

• Lalit Mohan Pandey v. Pooran Singh and Ors. AIR2004SC2303; Indian Handicrafts Emporium

and Ors. v. Union of India and Ors. AIR2003SC3240; Balram Kumawat v. Union of India and

Ors. AIR 2003 SC 3268;

• Secretary, Department of Excise & Commercial Taxes and Ors. v. Sun Bright Marketing (P)

Ltd., Chhattisgarh and Anr. (2004)3SCC185.


15. AREA OF DISPUTE CATEGORY - Cancellation

16. PROVISIONS OF LAW INVOLVED Section 122 (1) (c) of the Himachal Pradesh Panchayati

Raj Act, 1994

17. GIST OF THE CASE: As per Section 122 (1) (c) of the Himachal Pradesh Panchayati Raj Act,

1994 any encroacher of a land belonging to the State Government, a Municipality, a Panchayat

or a Co-operative Society was disqualified from bearing an office of the Panchayat. Surinder

Singh Banolta (one of the Respondents) was elected as a member of Zilla Parishad. Daulat Ram

(another Respondent) filed a complaint against the said election, claiming that Mr. Banolta was

declared as encroacher under Himachal Pradesh Public Premises (Rent Recovery and Land

Eviction) Act, 1971. Acting on the complaint, the Commissioner held him to be disqualified

from holding the post and the election was set aside. However, the High Court set aside the order

of the Commissioner holding it to be not sustainable in law. Appeal against this was filed in the

Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Supreme Court observed that

as per the aforesaid Act any order of encroachment passed after the election process is over

would be determined by the Deputy Commissioner. However if he is declared to be an

encroacher prior to the date on which he has been declared as elector, the question as to whether

he stood disqualified in terms of the provisions of Section 122 of the Act, must be raised by way

of an election petition alone. The High Court was thus held justified in setting aside the decision

of the Commissioner. The decision of the High Court was upheld. The appeals were dismissed

with cost of Rs. 10,000.



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39

19. RATIO DECIDENDI: Article 243O of the Constitution of India imposes a bar on interference

by courts in electoral matters.

20. OBITER DICTA: It is a well-settled principle of law that in a case where a statute is found to

be obscure, the same must be interpreted having regard to the constitutional scheme. In a case of

this nature, the doctrine of purposive construction should be applied.



393

40

XI. Baldev Singh v. Shinder Pal Singh and Anr.

1. STATE: Punjab



4. NAME OF BENCH: S.B. Sinha and Dalveer Bhandari, JJ.

5. CASE NAME: Baldev Singh v. Shinder Pal Singh and Anr.

6. CASE NO.: Civil Appeal No. 4560 of 2006 (Arising out of SLP (C) No. 24126 of 2004)


8. NAME OF APPELLANT/S: Baldev Singh

9. NAME OF RESPONDENT/S: Shinder Pal Singh


11. MAIN LAW POINTS INVOLVED: Whether the High Court was justified in upholding the

Election Tribunal’s order for recounting of votes.


• That the High Court acted illegally and without jurisdiction in passing the impugned judgment.

• That no case was made out for recounting of the votes and the same was ordered in utter

disregard of the evidences on record.


• M. Chinnasamy v. K.C. Palanisamy and Ors. Appeal (civil) 33 of 2003;

• T.A. Ahammed Kabeer v. A.A. Azeez and Ors. AIR 2003 SC 2271;

• Dr. Jagjit Singh v. Giani Kartar Singh AIR 1966 SC 773;

• Chandrika Parshad Yadav v. State of Bihar and Ors. Appeal (civil) 1999 of 2003;



394

41

• P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and Ors. 1988 SCR Supl. (3) 950;

• Gursewak Singh v. Avtar Singh and Ors. Appeal (civil) 1912 of 2006


15. AREA OF DISPUTE CATEGORY: Recounting of votes.

16. PROVISIONS OF LAW INVOLVED: Rule 35 of Punjab Panchayat Election Rules, 1994

17. GIST OF THE CASE: In the elections conducted for the post of Sarpanch, both the Appellant

and the Respondent no.1 got equal number of votes (412). Respondent No. 2 was said to have

gotten 4 votes. 8 votes were rejected. Following Rule 35 of Punjab Panchayat Election Rules,

1994, there was a draw of lots between them and the Appellant was declared the Sarpanch.

However, the Respondent then refused to accept the decision. He filed an election petition

alleging that only 821 votes had been polled and the Appellant had secured only 397 votes

whereas he had secured 412 votes. It was also stated that he was not present during the draw of

lots, and that the Presiding Officer had not taken out the lot himself, but delegated the task to

another returning officer. The Appellant, however, stated that the chits of draw of lots were torn

by the Respondent and the consent certificates of the parties for the same were also destroyed.

Ignoring the oral evidences given by the Magistrate and the Returning Officer, the Election

Tribunal ordered recounting of the votes, after which Respondent was stated to have received

412 votes, whereas Appellant was said to have received 398 votes. The Respondent was

thereafter declared as the Sarpanch. The High Court upheld the order of the Tribunal regarding

recounting of the votes.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Supreme Court noted that the

witnesses had not been cross-examined on the claims as to whether the Respondent had earlier

requested for recounting of votes and whether there had been any irregularities during the

election process. Further, the Court gave weightage to the fax message sent by the presiding

officer to the District Collector, which stated the facts of equality of votes, draw of lots and

tearing of the chits by the Respondent, and the genuineness of which document was not

challenged. It was observed, “The official act should be presumed to have been done in the



395

42

ordinary course of business. A recounting, as is well known, should not ordinarily be directed to

be made.” Hence the decisions of the Tribunal and the High Court were set aside. The appeal

was allowed and the Respondent was directed to pay Rs. 10,000 as costs to the Appellant.

19. RATIO DECIDENDI: The necessity of “maintaining the secrecy of ballot papers” should be

kept in view before a re-counting is directed to be made. A direction for re-counting shall not be

issued only because the margin of votes between the returned candidate and the election

petitioner is narrow.

20. OBITER DICTA: The verification of an election petition must be done strictly in terms of

Order VI, Rule 15 of the Code of Civil Procedure. It was, thus, incumbent on the part of the

Appellant to specifically state as to which statements made in the election petition were true to

his knowledge and which were true to his belief. A factual averment made in the election

petition cannot be both true to the knowledge and belief of the deponent.



396

43

XII. Harnek Singh v. Charanjit Singh and Ors.

1. STATE: Punjab



4. NAME OF BENCH: Ashok Bhan and S.B. Sinha, JJ.

5. CASE NAME: Harnek Singh v. Charanjit Singh and Ors.

6. CASE NO.: Civil Appeal No. 6325 of 2005 [Arising out of S.L.P. (C) No. 21724 of 2003]


8. NAME OF APPELLANT/S: Harnek Singh

9. NAME OF RESPONDENT/S: Charanjit Singh



• Whether a writ court should entertain a dispute as regards the validity or otherwise of an

election.


• That the High Court did not have the jurisdiction to entertain the petition. The proper forum was

the Election Tribunal.


• C. Subrahmanyam v. K. Ramanjaneyullu and Ors., (1998) 8 SCC 703;

• Jaspal Singh Arora v. State of M.P. and Ors., (1998) 9 SCC 594

• Mrs. Sanjana M. Wig v. Hindustan Petro Corporation Ltd., Appeal (civil) 7337 of 2004;

• Election Commission of India through Secretary v. Ashok Kumar and Ors., (2000) 8 SCC 216



397

44



16. PROVISIONS OF LAW INVOLVED: Section 89(1)(d)(iv) of the Punjab State Election

Commission Act, 1994

17. GIST OF THE CASE: The Appellant and the Respondent contested elections on 28th

January

2003, for the post of Chairman, Gram Panchayat, in which both of them secured equal number

of votes. Following this, there was a disruption in the law and order situation, which resulted in

the adjournment of the election process. Further, 30th

January 2003 was fixed as the next date of

polls by the Returning Officer. The Appellant won the election and was elected as the chairman.

The Respondent filed an application challenging the aforesaid election. After his application

against this was dismissed by the lower authorities, the Respondent filed a writ petition in the

High Court. He claimed that only the Election Commission could fix a date for the election. The

Returning Officer did not have such a power. Based on this, the High Court set aside the

election. An appeal was then filed before the Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Supreme Court found that in

the writ petition, the Respondent had mainly prayed for quashing the decision of the Returning

Officer of rejecting a valid vote which was in his favour and declaring him as the chairman. This

grievance should have been raised via an election petition. Relying on Section 89(1)(d)(iv) of the

Punjab State Election Commission Act, 1994 (which gives jurisdiction to Election Tribunal in

election matter), cases of Mrs. Sanjana M. Wig v. Hindustan Petro Corporation Ltd.,

AIR2005SC3454, C. Subrahmanyam v. K. Ramanjaneyullu and Ors. and Jaspal Singh Arora v.

State of M.P. and Ors. (which opine against the exercise of powers of the High court in presence

of alternative remedy in election matters), the Court ruled that setting aside of the election by the

High Court in the present case was not justified. The order of the High Court was set aside. The

appeal was allowed.

19. RATIO DECIDENDI: Article 243O of the Constitution of India mandates that all election

disputes must be determined only by way of an election petition. This by itself may not per se

bar judicial review which is the basic structure of the Constitution, but ordinarily such

jurisdiction would not be exercised.



398

45

20. OBITER DICTA: Plenary jurisdiction as exercised by the High Court under Article 226 of the

Constitution of India can be discretionary in nature that may not be exercised interalia keeping in

view of the fact that an efficacious alternative remedy is available.



399

46

XIII. Udey Chand v. Surat Singh and Anr.

1. STATE: Haryana



4. NAME OF BENCH: D.K. Jain and Aftab Alam, JJ.

5. CASE NAME: Udey Chand v. Surat Singh and Anr.



8. NAME OF APPELLANT/S: Udey Chand

9. NAME OF RESPONDENT/S: Surat Singh

10. CASE TYPE: Appeal


• What is the scope of enquiry under Clause (b) of Sub-section (4) of Section 176? Whether it

allows recounting of votes in any circumstance, or not.

• Whether the High Court was justified in affirming the order of the Tribunal for recounting of

votes, or not.


That before directing the recount in terms of Section 176(4)(b) of the Haryana Panchayati Raj

Act, 1994, the Tribunal was obliged to record a finding, on the basis of the material on record,

that a prima facie case for re-count had been made out. In the present case there was neither any

documentary nor oral evidence on record on the basis whereof the Tribunal could have recorded

such a finding.

13. REFERENCE TAKEN FROM OTHER CASE/S: Yes



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47

• Radha Kishan v. Election Tribunal-Cum-Sub Judge 1999 (2) PLJ 8;

• Janak Singh v. Ram Das Rai and Ors. Appeal (civil) 9228 of 2003: (2005) 2 SCC 1;

• Vadivelu v. Sundaram and Ors. (2000) 8 SCC 355;

• V.S. Achuthanandan v. P.J. Francis and Anr. (2001) 3 SCC 81;

• Chandrika Prasad Yadav v. State of Bihar and Ors. (2004) 6 SCC 331;

• Suresh Prasad Yadav v. Jai Prakash Mishra and Ors. (1975) 4 SCC 822;

• P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeenand Ors. :(1989) 1 SCC 526;

• Satyanarain Dudhani v. Uday Kumar Singh and Ors. (1993) Supp (2) SCC 82;

• M. Chinnasamy v. K.C. Palanisamy and Ors. (2004) 6 SCC 341


15. AREA OF DISPUTE CATEGORY: Re-counting

16. PROVISIONS OF LAW INVOLVED: Section 176(4)(a) and 176(4)(b) of the Haryana

Panchayati Raj Act, 1994

17. GIST OF THE CASE: In the elections conducted for the post of Sarpanch, the Respondent lost

to the Appellant by four votes. The Former filed an election petition, praying for re-counting of

votes and alleging that the number of votes was wrongly recorded by the Returning Officer due

to political pressure and in connivance with the Appellant. The Election Tribunal ordered for

recounting and the High Court affirmed this order, relying on the decision of Radha Kishan v.

Election Tribunal-Cum-Sub Judge 1999 (2) PLJ 8. A revision petition of the Appellant in the

High Court was also dismissed. In the Hon’ble Supreme Court, the Appellant argued that the

ratio of Radha Kishan case was not properly appreciated and there was no material on record to

support a case of recounting.

18. OPERATING PORTION OF THE JUDGMENT: At the outset, the Hon’ble Supreme Court

reiterated the principle of election law “that since an order for inspection and re-count of the

ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course.”

Further analysing Section 176(4)(a) and 176(4)(b) of the Haryana Panchayati Raj Act, 1994, the

Court opined that mere allegation of irregularity in the election process would not call for a

recounting. Furthermore, on analysing the facts the Court found that the election petition

contained vague allegations and no material facts warranting recounting of elections were



401

48

pleaded. Evidence was also not properly recorded. It was opined that a narrow margin of 4 votes

did not itself imply that there had been an irregularity or illegality in the counting of votes. The

appeal was allowed. The orders of recounting passed by Election Tribunal and its affirmation by

the High Court were set aside.

19. RATIO DECIDENDI: For an order of recounting to be justified, it should be checked that “two

basic requirements are satisfied, viz: (i) the election petition seeking re-count of the ballot papers

must contain an adequate statement of all the material facts on which the allegations of

irregularity or illegality in counting are founded, and

(ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima

facie satisfied that in order to decide the dispute and to do complete and effectual justice

between the parties, making of such an order is imperatively necessary.”

In a petition for recounting, the Court may not hold a regular inquiry but material facts should be

pleaded and supported by evidence, upon which the Court may apply its mind.

20. OBITER DICTA: Secrecy of ballot has always been considered sacrosanct in a democratic

process of election and it cannot be disturbed lightly by bare allegations of illegality or

irregularity in counting.

An order of recount of votes has to stand or fall on the nature of the averments made in the

election petition and the material produced in support thereof before the order of re-count is

made and not from the result emanating from the re-count of votes.The facts revealed by re-

count cannot be relied upon by the election petitioner to support the prayer and sustain the order

for re-count if the pleadings and material available on record anterior to actual re-count did not

justify grant of the prayer for inspection and re-count.



402

49

XIV. Som Lal v. Vijay Laxmi and Ors.

1. STATE: Punjab



4. NAME OF BENCH: A.K. Mathur and Altamas Kabir, JJ.

5. CASE NAME: Som Lal v. Vijay Laxmi and Ors.



8. NAME OF APPELLANT/S: Som Lal

9. NAME OF RESPONDENT/S: Vijay Laxmi and Ors.

10. CASE TYPE: Appeal


• Whether disqualification incurred under any of the two statutes, i.e., Punjab State Election

Commission Act, 1994 or Punjab Panchayati Raj Act, 1994, was sufficient, or not.

• Whether the two aforesaid statutes deserved a harmonious construction or the Punjab State

Election Commission Act, 1994 would prevail over Punjab Panchayati Raj Act, 1994.

12. GROUNDS OF CHALLENGE: Legality of disqualification incurred under any of the two

statutes, i.e., Punjab State Election Commission Act, 1994 or Punjab Panchayati Raj Act, 1994,


• Ratan Lal Adukia v. Union of India, AIR1990SC104;

• Hyderabad Chemical and Pharmaceutical Works Ltd. etc. v. State of Andhra Pradesh and

Ors., [1964]7SCR376;



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50

• Municipal Corporation of Delhi v. Shiv Shankar, 1971CriLJ680.

14. AREA OF DISPUTE: Disqualification

15. AREA OF DISPUTE CATEGORY: Office of Profit Related.

16. PROVISIONS OF LAW INVOLVED: Section 208 (1) (g) of the Punjab Panchayati Raj Act,

1994

17. GIST OF THE CASE: Both parties to the present case contested in the elections for the post of

Sarpanch of the Gram Panchayat and the Appellant won the elections. The Respondent filed an

election petition against this, alleging that the Appellant was working as a Fireman in the

Haryana State Agricultural Marketing Board. Hence as per Section 208 (1) (g) of the Punjab

Panchayati Raj Act, 1994 he was disqualified from contesting the elections for holding an office

of profit. The Appellant opposed this on basis of Section 11 of the Punjab State Election

Commission Act, 1994, as per which the holders of office of profit under any Panchayat,

Municipality, Union or State government were disqualified, but such people under any local

authority or Marketing Board were not. The election tribunal and the High Court set aside his

election as Sarpanch, opining that disqualification incurred under any one of the statutes was a

sufficient bar. Hence, an appeal was filed in the Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Supreme Court firstly noted

that the Punjab State Election Commission Act, 1994 had been enforced after the Punjab

Panchayati Raj Act, 1994. Further by virtue of Section 142 of the Punjab State Election

Commission Act, its provisions had an overriding effect to any other inconsistent law. Also

Section 143 provided for repealing of any other law on conduct of elections to the Panchayats or

Municipalities, notwithstanding anything inconsistent therein. Indeed there is a principle of

presumption against implied repeal. However, in this case the intention of the legislature was

very clear, i.e., to repeal any provision inconsistent with the Punjab State Election Commission

Act, 1994.

Thus, the Court held that the disqualifications under Punjab State Election Commission Act,

1994 would prevail over those under Punjab Panchayati Raj Act, 1994. Hence the Appellant was

not disqualified to contest the elections. The Appellant, by working in the Haryana State



404

51

Agricultural Marketing Board, was not holding any office of profit. The decision of the High

Court was set aside and the appeal was allowed.

19. RATIO DECIDENDI: The clear mandate of the legislature was that anything which is

inconsistent with the Punjab State Election Commission Act 1994 shall be deemed to have been

repealed leaves no room for a contrary view of the matter. A law which comes into force at a

later point of time and clearly expresses the intention of the legislature to repeal some earlier

provisions will prevail over the same.

20. OBITER DICTA: The courts should be very slow to interfere with the mandates of the

legislature unless there are compelling reasons for doing so.



405

52

XV. Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and Ors.




4. NAME OF BENCH: D.K. Jain and R.M. Lodha, JJ.

5. CASE NAME: Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and Ors.

6. CASE NO.: Civil Appeal No. 7701 of 2009 (Arising out of Special Leave Petition (Civil) No.

20515 of 2007)


8. NAME OF APPELLANT/S: Kattinokkula Murali Krishna

9. NAME OF RESPONDENT/S: Veeramalla Koteswara Rao

10. CASE TYPE: Appeal / SLP (Civil)


• Whether there were irregularities in the counting of votes, or not.

• Whether the Election Tribunal was correct in taking note of the over-writings in the record of the

vote count without there being any related pleadings in the election petition, or not.

• Whether this was a fit case for recounting, or not.

12. GROUNDS OF CHALLENGE: Irregularities in the counting of votes


• P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and Ors., (1989) 1 SCC 526;

• Vadivelu v. Sundaram and Ors., (2000) 8 SCC 355;

• Suresh Prasad Yadav v. Jai Prakash Mishra and Ors., (1975) 4 SCC 822



406

53


15. AREA OF DISPUTE CATEGORY: Re-counting

16. PROVISIONS OF LAW INVOLVED Section 233 of the Andhra Pradesh Panchayat Raj Act,

1994.

17. GIST OF THE CASE: In the elections for the post of Sarpanch, the Respondent lost to the

Appellant by two votes. The Respondent filed an election petition alleging irregularities in the

counting process. Some of the votes casted in his favour were rejected and some were illegally

counted in favour of some other candidate. Though the Respondent could not produce specific

evidence to prove his case, the Tribunal, on its own, took note of a number of over-writings in

the record of the vote count. Since the Election Officer had no explanation for the same, the

Tribunal ordered for recounting to enforce transparency. The High Court upheld its decision.

Hence, the appeal came to be filed before the Hon’ble Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Supreme Court noted that the

allegations in the election petition were vague and were not sufficient even to make a prima

facie case for recounting. Hence the Tribunal was held to be correct in not considering the same.

However, recounting could not be ordered on basis that it would be of no prejudice to either

party, or that there was a very narrow margin between votes secured by both the parties. Further,

it was stated that over-writing related irregularities were not alleged in the election petition and

burden of proof was upon the Respondent (election petitioner) to prove the irregularities, and not

on the Election Officer. The appeal was thus allowed and the order for recount of votes was set

aside. The appellant was awarded cost of Rs. 20,000.

19. RATIO DECIDENDI: An order for recounting must be passed only if the election petition

contains all material facts, backed by evidence, of irregularities in the process and the Tribunal

opines that recounting is imperative to do complete justice in the matter. However no universal

rule could be laid down and the final decision would depend on the facts and circumstances of

the case. The doctrine of prejudice is an irrelevant factor for ordering re-count.

20. OBITER DICTA: An order for inspection and re-count of the ballot papers affects the secrecy

of ballot and thus, such an order cannot be made as a matter of course.



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54

XVI. Bhanumati v. State of Uttar Pradesh, through its Principal Secretary and Ors.




4. NAME OF BENCH: G.S. Singhvi and A.K. Ganguly, JJ.

5. CASE NAME: Bhanumati etc. v. State of Uttar Pradesh, through its Principal Secretary and

Ors.

6. CASE NO.: Civil Appeal Nos. 4135-4152 of 2010 (Arising out of SLP (C) Nos. 3802-3819 of

2009), Civil Appeal No. 4153/10 (Arising out of SLP (C) No. 4320/09), Civil Appeal Nos. 4154-

55/10 (Arising out of SLP (C) Nos. 4322-23/09), Civil Appeal Nos. 4156-57/10 (Arising out of

SLP (C) Nos. 4515-16/09), Civil Appeal No. 4158/10 (Arising out of SLP (C) No. 4517/09),

Civil Appeal Nos. 4159-64/10 (Arising out of SLP (C) Nos. 4554-59/09), Civil Appeal No.

4165/10 (Arising out of SLP (C) No. 4941/09), Civil Appeal No. 4166/10 (Arising out of SLP

(C) No. 4960/09), Civil Appeal No. 4167/10 (Arising out of SLP (C) No. 4964/09), Civil Appeal

No. 4168/10 (Arising out of SLP (C) No. 5481/09), Civil Appeal No. 4169/10 (Arising out of

SLP (C) No. 5439/09), Civil Appeal No. 4170/10 (Arising out of SLP (C) No. 5902/09), Civil

Appeal No. 4171/10 (Arising out of SLP (C) No. 9180/09), Civil Appeal No. 4172/10 (Arising

out of SLP (C) No. 9343/09), Civil Appeal No. 4173/10 (Arising out of SLP (C) No. 9352/09),

Civil Appeal Nos. 4174-75/10 (Arising out of SLP (C) Nos. 7225-26/09), Civil Appeal No.

4176/10 (Arising out of SLP (C) No. 7651/09), Civil Appeal No. 4177/10 (Arising out of SLP

(C) No. 10069/09) and Civil Appeal No. 4178/10 (Arising out of SLP (C) No. 10543/09)


8. NAME OF APPELLANT/S: Bhanumati

9. NAME OF RESPONDENT/S: State of Uttar Pradesh, through its Principal Secretary and Ors.

10. CASE TYPE: SLP (Civil)



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• Whether the U.P. Panchayat Laws (Amendment) Act, 2007 was constitutionally valid.

• Whether the provision of no-confidence motion against the Chairman of the Panchayat was

against the ethos of Part IX of the Constitution.


• The impugned amendments had destroyed the essence of the Panchayati principles and had

made way for executive interference.

• There was no concept of no-confidence motion in the detailed constitutional provision under

Chapter IX of the Constitution. Hence the amendments went contrary to the Constitutional

principles and also diluted the stability of the Panchayats.


• Mohan Lal Tripathi v. District Magistrate, Rai Bareilly and Ors., 1992 (4) SCC 80;

• Ram Beti v. District Panchayat Raj Adhikari and Ors., 1998 (1) SCC 680;

• State of Bihar and Ors. v. Bihar Distillery Limited, JT 1996 (10) S.C. 854

14. AREA OF DISPUTE NAME: Removal and no-confidence motion

15. AREA OF DISPUTE CATEGORY: Suspension of Sarpanch and other members

16. PROVISIONS OF LAW INVOLVED: U.P. Panchayat Laws (Amendment) Act, 2007;


17. GIST OF THE CASE: The U.P. Panchayat Laws (Amendment) Act, 2007 introduced several

amendments to the Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 and

the constitutional validity of Sections 9, 15 and 28 of the Act of 2007 was challenged in the

present case. These amendments firstly repealed the offices of “Up-Pramukh”, “Senior Up-

Pramukh”, “Junior Up-pramukh” and “Upadhyaksha”. Secondly, the concept of no-confidence

motion was incorporated against the Panchayat. Also the period before which a no-confidence

motion could not be brought was reduced from ‘two years’ to ‘one year’ and the requirement of



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special majority for this purpose was reduced to simple majority. Against these, the Appellants

argued that the essence of the Panchayati principles had been eroded and provisions had been

made for executive interference. Further there was no concept of no-confidence motion in the

detailed constitutional provision under Chapter IX of the Constitution. Hence the amendments

went contrary to the Constitutional principles and also diluted the stability of the Panchayats.

18. OPERATING PORTION OF THE JUDGMENT: It was observed that Article 243 C (5) of

the Constitution specifically enabled the State Legislature to provide the details of election of the

Chairperson. Therefore the Hon’ble Supreme Court rejected the argument that the provision of

no-confidence motion against the Chairman, being not in the Constitution, could not be provided

in the statute. Moreover the provision of a no-confiedence motion had already been there under

Section 15 of the Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961,

which was not repealed even after the 73rd

Constitutional Amendment. Rather it was confirmed

with minor changes in subsequent amendment Acts of 1998. The provision of no-confidence was

not inconsistent with Part IX of the Constitution. The Court also rejected the argument that as a

result of the impugned amendment, the stability and dignity of the Panchayati Raj Institution had

been undermined. As a result of no-confidence motion the Chairperson of a Panchayat lost

his position as a Chairperson but he remained a member, and the continuance of Panchayat as an

institution was not affected in the least. Hence the Court upheld the Constitutional validity of the

U.P. Panchayat Laws (Amendment) Act, 2007 and dismissed the appeals.

19. RATIO DECIDENDI: In a democracy all persons heading public bodies can continue provided

they enjoy the confidence of the persons who comprise such bodies. This is the essence of

democratic republicanism. This explains why this provision of no-confidence motion was there

in the Act of 1961 even prior to the 73rd Constitution amendment and has been continued even

thereafter.

20. OBITER DICTA: The legislative entry is generic in nature and virtually constitutes the

legislative field and has to be very broadly construed. These entries demarcate ‘areas’, fields of

legislation within which the respective laws are to operate and do not merely confer legislative

power as much. The words in the entry should be held to extend to all ancillary and subsidiary

matters which can be reasonably said to be encompassed by it.



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XVII. Anokh Singh v. Punjab State Election Commission and Harchand Singh v. State of

Punjab and Ors.

1. STATE: Punjab



4. NAME OF BENCH: B. Sudershan Reddy and S.S. Nijjar, JJ.

5. CASE NAME: Anokh Singh v. Punjab State Election Commission and Harchand Singh v. State

of Punjab and Ors.

6. CASE NO.: Civil Appeal No. ... of 2010 (Arising out of SLP (C) No. 7319 of 2009) and Civil

Appeal No. ... of 2010 (Arising out of SLP (C) No. 10948 of 2009)


8. NAME OF APPELLANT/S: Anokh Singh, Harchand Singh

9. NAME OF RESPONDENT/S: Punjab State Election Commission, State of Punjab.



• Whether the office of lambardar constituted an office of profit.

• Whether the honorarium of Rs. 900 could be construed as remuneration received from the

government.


• Whether an office of Lambardar is merely a heritage office as his paramount duty was to collect

land revenue which has been abolished in the state of Punjab under Punjab State Legislature

(Prevention of disqualifications) Act.



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13. REFERENCE TAKEN FROM OTHER CASE/S: Yes.

• Gatti Subanna, Gubbi Taluk, Mysore State v. G.S.Kaggeerappa, Merchant, Gubbi, AIR 1954 SC

653

• S. Umrao Singh v. Darbara Singh and Ors., 1969 (1) SCR 421

• K.B. Rohamare v. Shanker Rao Genuji Kolhe: (1975) 1 SCC 252

• Shibu Soren v. Dayanand Sahay: (2001) 7 SCC 425

14. AREA OF DISPUTE NAME: Disqualification

15. AREA OF DISPUTE CATEGORY: Office of profit related

16. PROVISIONS OF LAW INVOLVED: Punjab State Election Commission Act, 1994 - Section

11; Punjab State Legislature (Prevention of disqualifications) Act, 1952 - Section 2; Constitution

of India - Article 102(1), Constitution of India - Article 191(1).

17. GIST OF THE CASE: By a government order the Lambardar and Anganwari workers were

declared to be holders of office of profit and hence debarred from contesting elections as a

Member of Panchayat. Several writ petitions were filed by such aggrieved persons in the High

Court. The High Court concluded that Lambardar constitutes an office of profit, but the

Anganwadi does not. Thus, the issue before the Supreme Court was only with respect to

Lambardars.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Supreme Court followed the

decision given in the case of Mahavir Singh v. Khiali Ram and Ors., (2009) 3 SCC 439 in

holding that Lambardar is not a post under the Government and no remuneration is payable to

him by the government. It further noted that the main duties of the Lambardar included

collection of land revenue, for which he used to get a portion of the village officer’s cess equal

to ten percent of the land revenue assessed. However the Punjab Government had already

abolished the land revenue system and thus he had no revenue to collect.

He was then paid an honorarium of Rs.900/- to enable him meet the expenses related to other

duties. Relying on various other cases which dealt with the terms ‘office of profit’ and



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‘honorarium’ the Court observed that the said amount of Rs. 900 was paid to compensate for

other duty related expenses of the Lambardars. No evidence was adduced to show that the

amount given was in excess of the expenses and implied a pecuniary gain. Further, it was held

that the office of the Lambardar was a heritage office, a matter of prestige for the families and

cherished by them even in absence of any pecuniary gain. It was not an office of profit.

Lambardars were not disqualified from contesting panchayat elections. The decision of the High

Court was set aside.

19. RATIO DECIDENDI: For determining ‘office of profit’ it is necessary to evaluate the nature

and the importance of the functions performed. It would be essential to determine whether it

would be necessary for the person holding an office under the Government to incur any

expenditure in performance of the functions. These matters would then have to be correlated to

any honorarium, allowance or stipend that may be attached to the office.




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XVIII. Dr. K. Krishna Murthy and Ors. v. Union of India (UOI) and Anr.

1. STATE: Karnataka


3. BENCH: Five Judges Bench

4. NAME OF BENCH: K.G. Balakrishnan, C.J., R.V. Raveendran, D.K. Jain, P. Sathasivam and

J.M. Panchal, JJ.

5. CASE NAME: Dr. K. Krishna Murthy and Ors. v. Union of India (UOI) and Anr.

6. CASE NO.: Writ Petition (Civil) Nos. 356 of 1994, 245 of 1995 and 517 of 2005


8. NAME OF APPELLANT/S: Dr. K. Krishna Murthy

9. NAME OF RESPONDENT/S: Union of India

10. CASE TYPE: Writ Petition (Civil)


• Whether Article 243D(6) and Article 243T(6) are constitutionally valid since they enable

reservations in favour of backward classes for the purpose of occupying seats and chairperson

positions in Panchayats and Municipalities respectively?

• Whether Article 243D(4) and Article 243T(4) are constitutionally valid since they enable the

reservation of chairperson positions in Panchayats and Municipalities respectively?


• That the impugned provisions violated the principles of democracy and equality which were part

of the ‘basic structure’ of the Constitution under Articles 243 D (4), 243 (D) (6), 243 (T) (4), 243

(T) (6).



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• That Reservation with respect to the post of Chairman of elected local bodies amounted to cent-

percent reservation, which was contrary to Articles 14 and 16.


• I.R. Coelho v. State Tamil Nadu, (2007) 2 SCC 1;

• Union of India v. Rakesh Kumar, (2010) 1 SCALE 281;

• Mohan Lal Tripathi v. District Magistrate, Rai Bareilly, (1992) 4 SCC 80.

14. AREA OF DISPUTE NAME: Reservation

15. AREA OF DISPUTE CATEGORY: Reservation related to SC, ST and women, Backward

Class.

16. PROVISIONS OF LAW INVOLVED: Articles 243 D (4), 243 (D) (6), 243 (T) (4), 243 (T)

(6).

17. GIST OF THE CASE: Three Writ Petitions, challenging the reservation policies adopted by

some states in the Panchayats and Municipalities, were heard together in this case. The

Petitioners challenged the very concept of reserving the post of chairperson in elected local

bodies. Further, they challenged the constitutional validity of Articles 243 D (4), 243 (D) (6),

243 (T) (4), 243 (T) (6) of the Constitution, and that of the aforesaid provisions in the laws of

Karnataka and Uttar Pradesh, claiming that these provisions violated the principles of democracy

and equality which were part of the ‘basic structure’ of the Constitution.With respect to the

Karnataka Panchayati Raj Act, it was argued that reservations therein were provided in excess of

the 50% upper ceiling, in violation of the judicial precedents. Hence, the case was filed to

adjudge whether such reservation did not fulfill the objective of supporting the weaker sections

of society.

18. OPERATING PORTION OF THE JUDGMENT: The Apex Court held that Article 243D(6)

and 243T (6) which provide for reservation in favour of OBCs were “merely enabling

provisions” and were not violative of Article 14. Also, excessive reservations set by state

legislations in favour of OBCs could not be a ground for striking down the aforesaid

constitutional provisions. Further, it was opined that in the absence of any explicit guidance on



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the scheme of reservation, the thumb rule was “that of proportionate reservation.” Nevertheless

it was cautioned that “the upper ceiling of 50%... with respect to vertical reservations in favour

of SC/ST/OBCs should not be breached.” However the petitioners had also accounted for the

reservation in favour of women to argue that the 50% mark had been breached. The Court

rejected this, opining that the ‘horizontal reservations in favour of women’ were not to be

counted while calculating the 50% limit.

Further in the absence of updated empirical data and other evidence, the Hon’ble Court refused

to adjudicate upon the validity of the impugned provisions in the Pachayati Raj laws of U.P. and

Karnataka.

The Court also dealt with the challenge against reservation for post of chairman. It was affirmed

that the scheme of reservations under Article 16 did not allow reservation for a single post.

However, the Court refused to import this principle while interpreting Articles 243 (D) (4) and

243 (T) (4). It was held that the post of Chairman was not a single one; instead the ‘frame of

reference’ was the ‘entire pool’ of such posts throughout the state, which were reserved on

rotation basis.

It was further opined that reservation of chairperson posts in favour of SCs, STs, OBCs and

women did restrict the rights of political participation of persons from the unreserved categories

to a certain extent. However, it was held that the test of reasonable classification was met in

view of the legitimate governmental objective of safeguarding the interests of weaker sections

by ensuring their adequate representation as well as empowerment in local self-government

institutions.

19. RATIO DECIDENDI: (i) The nature and purpose of reservations in the context of local self-

government is considerably different from that of higher education and public employment. In

this sense, Articles 243D and Article 243T form a distinct and independent constitutional basis

for affirmative action and the principles that have been evolved in relation to the reservation

policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local

self-government.

(ii) Article 243D(6) and Article 243T(6) are constitutionally valid since they are in the nature of

provisions which merely enable State Legislatures to reserve seats and chairperson posts in



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favour of backward classes. Concerns about disproportionate reservations should be raised by

way of specific challenges against the State Legislations, backed by updated empirical and other

evidence.

(iv) The upper ceiling of 50% vertical reservations in favour of SC/ST/OBCs should not be

breached in the context of local self-government. Exceptions can only be made in order to

safeguard the interests of Scheduled Tribes in the matter of their representation in panchayats

located in the Scheduled Areas.

(v) The reservation of chairperson posts in the manner contemplated by Article 243D(4) and

243T(4) is constitutionally valid. These chairperson posts cannot be equated with solitary posts

in the context of public employment.

20. OBITER DICTA: The scheme of reservations under Article 16 did not allow reservation for a

single post.



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XIX. Raghvendra Kumar v. Prabal Kumar and Ors.




4. NAME OF BENCH: H.L. Gokhale and Jasti Chelameswar, JJ.

5. CASE NAME: Raghvendra Kumar v. Prabal Kumar and Ors.

6. CASE NO.: Civil Appeal No. 8333 of 2013 (Arising out of SLP (C) No. 2372/2011)


8. NAME OF APPELLANT/S: Raghvendra Kumar

9. NAME OF RESPONDENT/S: Prabal Kumar


11. MAIN LAW POINTS INVOLVED: Whether getting released on bail after conviction enables

a person to contest elections for Gram Pradhan, or not?

12. GROUNDS OF CHALLENGE: Having been convicted of an offence, whether getting released

on bail enables a person to contest elections for Gram Pradhan, or not.

13. REFERENCE TAKEN FROM OTHER CASE/S: Nil.


15. AREA OF DISPUTE CATEGORY: Eligibility of candidate

16. PROVISIONS OF LAW INVOLVED: Section 5-A of Uttar Pradesh Panchayati Raj Act 1947.

17. GIST OF THE CASE: The Respondent filed the nomination papers in order to contest election

for Pradhan of Gram Panchayat Aheta, District Jalaun, U.P. and his papers were initially



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65

accepted. However his nomination was cancelled by the Returning Officer by an oder dated 5th

October 2010, on account of his conviction under Section 307 of Indian Penal Code, 1860.

Aggrieved by this, the Respondent filed a Writ Petition (Civil Misc. Writ Petition No. 62085 of

2010) in the Allahabad High Court, stating that he was released on bail on 25th

August 2005 by

the High Court. In addition, it was found that the offence for which the Respondent was

convicted did not involve moral turpitude. Hence, by an interim order the High Court stayed the

cancellation of his nomination and allowed him to contest the elections. Consequently the

Respondent won the elections and got elected as the Pradhan.

The Appellant filed an appeal in the Hon’ble Supreme Court against the aforesaid interim order.

18. OPERATING PORTION OF THE JUDGMENT: The Court noted that though the

Respondent was released on bail, his conviction was very much in force, against which an

appeal was pending in the High Court. His release on bail did not amount to his acquittal. Hence

the instant appeal was allowed and the Respondent was directed to vacate the office of the

Pradhan.

19. RATIO DECIDENDI: Release on bail cannot be equated with acquittal from the offence, and

did not clear the way for a person to contest the Gram Pradhan elections.




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XX. Zelia M. Xavier Fernandes E. Gonsalves v. Joana Rodrigues and Ors.

1. STATE: Goa



4. NAME OF BENCH: R.M. Lodha and H.L. Gokhale, JJ.

5. CASE NAME: Zelia M. Xavier Fernandes E. Gonsalves v. Joana Rodrigues and Ors.

6. CASE NO.: Civil Appeal No. 1544 of 2012 (Arising out of SLP (Civil) No. 26568 of 2009)


8. NAME OF APPELLANT/S: Zelia M. Xavier Fernandes E. Gonsalves

9. NAME OF RESPONDENT/S: Joana Rodrigues, Village Panchayat of Raia Village.



a. Whether a member of the Panchayat can be said to have a pecuniary interest in the contract

awarded to her husband by the Panchayat.

b. In case the aforesaid issue is answered in affirmative, whether by virtue of such award the Panch

has incured a disqualification as against the Panchayat membership.


That a member of the Panchayat can be said to have a pecuniary interest in the contract awarded

to her husband by the Panchayat


• Gulam Yasin Khan v. Sahebrao Yeshwantrao Walaskar and Anr. : AIR 1966 SC 1339



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67

14. AREA OF DISPUTE NAME: Personnel System

15. AREA OF DISPUTE CATEGORY: Appointment related

16. PROVISIONS OF LAW INVOLVED: Section 10 (f) of the Goa Panchayat Raj Act, 1994.

17. GIST OF THE CASE: The Appellant was a member of the Panchayat of Raia Village, Salcete

Taluka, South Goa. On 18th

March 2008, Respondent no. 2 (i.e. village Panchayat of Raia)

invited bids for the collection of market fee within its jurisdiction for 2008-09. The submitted

bids included the bid of the Appellant’s husband (Xavier Fernandes) and Respondent no.1

(Joana Rodrigues). The Appellant’s husband’s bid was found to be the highest and it was

accepted. On this basis, on 31st March 2008, the Respondent no. 1 filed applications to Deputy

Director of Panchayat, Madgaon, Goa and Goa State Election Commission, stating that the

Appellant should be disqualified from being a member of the Panchayat under Section 10 (f) of

the Goa Panchayat Raj Act, 1994. On receiving directions from the State Election Commission,

she filed an election petition under Section 11 of the said Act, arguing that the Appellant,

directly or indirectly, had a pecuniary interest in the contract awarded to her husband by the

village Panchayat. The Commission upheld the aforesaid contention and held the Appellant

disqualified from being a Panchayat member. Aggrieved by this, the Appellant filed a Writ

Petition in the High Court, which was dismissed. Hence she filed an appeal in the Hon’ble

Supreme Court. It was contended that the mere relationship of husband and wife did not create a

pecuniary interest ‘as contemplated under Section 10’.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Court took note of various

laws in force in the state of Goa especially Section 10 (f) of Goa Panchayat Raj Act, 1994.

Relying on the aforesaid provisions and some judicial precedents, the Court opined that the

financial gains made by the Appellant’s husband from the impugned contract with the Village

Panchayat was ‘communityproperty’ and hence, undoubtedly the Appellant had an indirect

interest vested in the same, (as the husband and wife, ‘by operation of law’, would equally share

the profits). Hence, the Appellant was held to be disqualified from the membership of the

Panchayat.

19. RATIO DECIDENDI: Section 10(f) speaks of monetary interest. The general rule that the

wife’s interest is not necessarily the husband’s interest has no application where the husband and



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the wife are governed by the system ‘community of property’ because under that system, on

marriage, each spouse is entitled to a one-half income of the other spouse unless contracted

otherwise. During the subsistence of marriage, the husband and the wife each have a share in the

corpus as well as the income of communion property.

20. OBITER DICTA: The purpose and object of providing for disqualification for membership of

the Panchayat in Clause (f) of Section 10 is to ensure that there is no conflict between the private

interest of the member and his duty as a member of the Panchayat. It is based on general

principle of conflict between duty and interest.



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XXI. Gram Panchayat, Patiala v. State Of Punjab and Others

1. STATE: Punjab



4. NAME OF BENCH: M.N. Venkatachaliah and P.B. Sawant, JJ.

5. CASE NAME: Gram Panchayat, Patiala v. State of Punjab and others

6. CASE NO.: SLP No. 5322 of 1990


8. NAME OF APPELLANT/S: Gram Panchayat, Patiala

9. NAME OF RESPONDENT/S:State of Punjab



Whether there was any ground for interference with the order of the Excise and Taxation

Commissioner, of overruling the ban on sale of illicit liquor in the vend in the village.


The impugned order of the Commissioner was perverse. The alleged incidents of illicit

distillation, even if true, were irrelevant considerations and hence, could not be taken into

account. Moreover the Excise Commissioner had placed the interests of revenue paramount

sacrificing a social defence mechanism in Section 26 Punjab Gram Panchayats Act, 1952.

13. REFERENCE TAKEN FROM OTHER CASE/S: Nil

14. AREA OF DISPUTE NAME: Others

15. AREA OF DISPUTE CATEGORY: Dispute between Panchayats and State Departments/

Agencies.



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16. PROVISIONS OF LAW INVOLVED: Section 26 of the Punjab Gram Panchayats Act, 1952

17. GIST OF THE CASE: On 21st September 1989, the Gram Panchayat of Chanarathal Kalan,

Punjab, passed a resolution under Section 26 of Punjab Gram Panchayats Act, 1952, banning the

sale of intoxicating liquor in the liquor vend situated in the village. While passing the resolution,

the Panchayat took note of the fact that the liquor shop was just 20 yards away from a

Government High School right opposite to the Bus Stand and 100 yards away from the Primary

Health center. Under Section 26, such resolution was binding on the Excise and Taxation

Commissioner, except when he recorded with reasons in writing that “illicit distillation or

smuggling of alcohol in the local area (had) been carried on or connived at, within two years

preceding the date of the passing of such resolution”. On the basis of this provision the

Commissioner overruled the Resolution, citing as reasons three FIRs, filed before the period of

two years from the date of Resolution, against illicit distillation of liquor in the village. The

Gram Panchayat challenged this decision via a Writ Petition in the High Court, which was

dismissed. Hence, a Special Leave Petition was filed in the Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Supreme Court found that there was

considerable merit in the arguments of the Petitioner. The Commissioner had not made an

attempt to balance the conflicting interests of state revenue and social well- being. However by

the time the instant case was heard, the period of licence had already expired, and hence a

material fact had ceased to exist. The petition was thus disposed off as infructuous. However the

petitioner submitted that such a dispute arose in the subsequent also when the license was

renewed. The Court held that this was a ‘separate and distinct cause of action’ and had to be

addressed by initiating appropriate legal proceedings, such as a writ petition in the High Court.

19. RATIO DECIDENDI: The Commissioner has to take into account considerations of social

well-being and public good; provide disincentive to illicit liquor trade and also protect the

revenues.

20. OBITER DICTA: The exercise of powers conferred by the proviso called for a judicious and

sensitive evaluation and reconciliation of social interests and considerations of the revenue.



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XXII. Radhakisan Rathi v. Additional Collector, Durg

1. STATE: Madhya Pradesh



4. NAME OF BENCH: P.B. Sawant and S.B. Majmudar, JJ.

5. CASE NAME: Radhakisan Rathi v. Additional Collector, Durg

6. CASE NO.: Civil Appeal No. 597 with C.A. Nos. 598 of 1975, 665-66 and 667 of 1981, 5102 of

1995 (S.L.P. (C) No. 7533 of 1980).


8. NAME OF APPELLANT/S: Radhakisan Rathi

9. NAME OF RESPONDENT/S: Additional Collector, Durg


11. MAIN LAW POINTS INVOLVED: Whether the Janapada Panchayat was competent to levy

theatre tax on the cinema theatres on which the Municipality had already imposed ‘cinema tax’,

or not.


The Panchayats Act 1962 was concerned with only rural areas and,therefore, theatres situated in

urban areas like Municipal Council or the Corporation limits could not be covered by the tax net

available under the said Act. Janapada Panchayat may impose tax only in rural areas comprised

in the block and forming part of Gram Panchayat or any other rural area not governed by

concerned Municipalities Act.



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• Sri Krishna Das v. Town Area Committee, Chiragaon, [1990]183ITR401(SC).

14. AREA OF DISPUTE: Finance

15. AREA OF DISPUTE CATEGORY: Benefit Tax

16. PROVISIONS OF LAW INVOLVED: Panchayats Act 1962 – Sections 2(iii), 2(x), 103, 104,

157, 376.

17. GIST OF THE CASE: The case was related to the imposition of taxes on the movie theatres

situated in various towns of (the undivided) Madhya Pradesh such as Durg, Indore, Bhopal,

Ujjain and Raipur, which towns were governed by municipalities under the Madhya Pradesh

Municipalities Act, 1961 and the Madhya Pradesh Municipal Corporations Act, 1956. The

respective municipalities had imposed ‘cinema tax’ on these theatres. In addition, these theatres

were also situated within the territorial limits of Janapada Panchayats functioning under the

Panchayats Act, which Panchayats had imposed ‘theatre tax’ on the theatres from the year 1971

to 1978. The Appellants argued that once cinema taxes were imposed on cinema theatres by

concerned local authorities, they cannot be taxed by Janapada Panchayats by way of theatre tax.

The High Court rejected this argument and upheld the levy of theatre tax by the Panchayats,

against which the Appellants filed an appeal in the Hon’ble Supreme Court.

18. OPERATING PORTION OF THE JUDGMENT: The Supreme Court was not convinced

with the argument of the Appellants. It noted that the State government had the power to notify

an area as a Block. Further Section 104 (1) of the Panchayats Act 1962 provided for every block

a Janapada Panchayat having jurisdiction over it. It could also levy taxes on theatres as per

Section 157. The Court rejected the contention that a Panchayat could levy taxes only in the

rural areas of a Block which were not covered under any Municipality. It was observed that a

cinema theatre situated within the territorial limits of local municipality or a corporation could

be taxed by the concerned municipality in exercise of its powers under the relevant Municipal

Act. But if the same theatre was also situated within a block duly constituted under the

Panchayats Act, it would fall within the territorial limits of the concerned Janapada Panchayat

constituted for that block as laid down by Section 103 read with Section 104 of the Panchayats



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Act 1962. The Janapada Panchayat would then be entitled to invoke its taxation powers under

Section 157 for the area within its jurisdiction. Further, the proviso to Section 104 of the

Panchayats Act stated that if any corporation, municipal town area or notified area was also

situated in the block constituted under Section 103 then for the purpose of discharging the

functions of the concerned municipality under the Municipal Law, the said municipality will be

treated as a separate administrative area. However it was observed that the said proviso did not

operate by itself to exclude the taxation powers of the Panchayat under Section 157 with respect

to such an area.

19. RATIO DECIDENDI: Where more than one legislative authority, such as the State legislature

and a local or municipal body possess the power to levy a tax, there is nothing in the

Constitution to prevent the same person or property being subject to both the State and

municipal taxation or the same legislature exercising its power twice for different purposes.

20. OBITER DICTA: A cinema theatre situated within the territorial limits of local municipality or

a corporation could be taxed by the concerned municipality in exercise of its powers under the

relevant Municipal Act. But if the same theatre was also situated within a block duly constituted

under the Panchayats Act, it would fall within the territorial limits of the concerned Janapada

Panchayat constituted for that block as laid down by Section 103 read with Section 104 of the

Panchayats Act 1962.



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XXIII. Jindal Stripe Ltd. and Ors. v. State of Haryana and Ors.

1. STATE: Haryana



4. NAME OF BENCH: Ruma Pal and P. Venkatarama Reddi, JJ.

5. CASE NAME: Jindal Stripe Ltd. and Ors. v. State of Haryana and Ors.

6. CASE NO.: Civil Appeal Nos. 3453, 3454-63, 3465-71 and 5858/2002 and SLP(C) Nos. 9537,

11698, 11558, 11595, 12260, 12424, 13995, 14388, 14400, 14409, 16555 and 22462 of 2002


8. NAME OF APPELLANT/S: Jindal Stripe Ltd.

9. NAME OF RESPONDENT/S: State of Haryana


11. MAIN LAW POINTS INVOLVED: Whether the impugned entry tax imposed under the

Haryana Local Area Development Tax Act, 2000 was compensatory in nature.


(a) The impugned entry tax was unconstitutional as being violative of Article 301 of the

Constitution.

(b) The exception to Article 301 of ‘compensatory taxes’ was applicable in this case. Uniformity,

which was an essential attribute of compensatory taxes, was not present in this case, as the tax

was imposed only on selected traders who did not pay sales tax to the state of Haryana. Further

that the service was already taxed under other laws and hence, the impugned tax was not

compensatory in nature.



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a) The test of ‘some link between the tax and the facilities extended to dealers directly or

indirectly’ to check if the tax is compensatory or not, was not a good test, because by virtue of

that there would be no practical distinction between a tax raised for general revenue purposes

and a compensatory tax.


• Atiabari Tea Co. Ltd. v. State of Assam, [1961]1SCR809;

• Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, [1963] 1SCR491;

• Kamalit Singh v. Municipal Board, AIR1987SC56;

• Bhagat Ram v. Commissioner of Sales Tax, 1994(4)SCALE1103;

• State of Bihar v. Bihar Chamber of Commerce, AIR1995Pat144.

14. AREA OF DISPUTE NAME: Finance

15. AREA OF DISPUTE CATEGORY: Tax on goods

16. PROVISIONS OF LAW INVOLVED: Haryana Local Area Development Tax Act, 2000 –

Preamble, Section 22; Constitution of India, Art. 301, 304(b), Article 145(3).

17. GIST OF THE CASE: The Appellants in this case were industries functioning in the state of

Haryana. However they used to procure their raw materials from outside the state and most of

their finished products were also sold outside the state. The Haryana Local Area Development

Tax Act, 2000 levied “entry tax on all goods brought into a ‘local area’ (i.e., an area within the

limits of a Municipal Corporation established under the Haryana Municipal Corporation Act,

1994 and such other laws). The entry tax was practically imposed on entities such as the

Appellant, which did not pay sales tax to the state but to the Centre under the Central Sales Tax

Act, 1956, on the purchase of raw material and sale of finished goods to other States. The tax

collected under this Act had to be distributed by the State Government amongst the local bodies

to be utilised for the development of local areas. The Appellants challenged the constitutional

validity of this Haryana Local Area Development Tax Act, 2000 alleging it to be violative of



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Article 301 of the Constitution. In addition, they argued that the impugned tax was not

compensatory in nature.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Supreme Court decided that

the interpretation of Article 301 vis-a-vis compensatory tax should be authoritatively laid down

by the Constitution Bench. It referred the matter with some questions, viz.,(a)whether the

impugned entry tax was compensatory in nature, (b) whether the compensatory nature of tax

should be self-evident from the taxing law itself or it could be judged from the manner in which

the tax revenue is utilized in course of time.

19. RATIO DECIDENDI: The essence of Article 301 is a right of free movement of trade without

any obstructions by way of barriers - inter-State or intra-state or impediments operating as such

barriers. Taxes which have a direct impact on the flow of trade and commerce constitute a

violation of Article 301 unless the legislation is brought within the scope of Article 304(b). The

tax levied upon the entry of goods into a local area for the purpose of use, consumption or sale

therein has a direct effect on the movement of goods and therefore it can be saved only if the

levy is in the nature of compensatory tax for the use of trading facilities or it comes under the

protective umbrella of Article 304.3) So long as a tax remains compensatory or regulatory, it

cannot operate as a hindrance to trade.

20. OBITER DICTA: A tax does not cease to be compensatory in nature merely because the

precise or specific amount collected is not actually used in providing the facilities. However, the

existence of a specific, identifiable object behind the levy and a nexus between the subject and

the object of the levy is necessary to uphold a regulatory and compensatory tax.The actual user

of the facility by the tradesmen who are subject to the tax is immaterial.



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XXIV. R.N.A. Britto V. Chief Executive Officer and Others

1. STATE: Karnataka



4. NAME OF BENCH: Kuldip Singh and N.G. Venkatachala, JJ.

5. CASE NAME: R.N.A. Britto v. Chief Executive Officer and others



8. NAME OF APPELLANT/S: R.N.A. Britto

9. NAME OF RESPONDENT/S: Chief Executive Officer and others



Whether a Secretary of a Panchayat a State Government servant, was entitled to invoke the

jurisdiction of the Administrative Tribunal to decide upon the matter of termination of his

service under Section 15(1)(b) of the Administrative Tribunals Act 1985.

12. GROUNDS OF CHALLENGE: A Secretary to the Panchayat was a State Government servant

serving in connection with the affairs of the local authority, and hence the Administrative

Tribunal had jurisdiction over the matter of his termination.


• State of Assam and Ors. v. Shri Kanak Chandra Dutta, (1968)ILLJ288SC;

• State of Gujarat and Anr. v. Roman Lal Keshav Lal Soni and Ors., 1983CriLJ846.



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14. AREA OF DISPUTE NAME: Personnel

15. AREA OF DISPUTE CATEGORY: Appointment Related

16. PROVISIONS OF LAW INVOLVED:

Constitution of India, Articles 309, 310, 311; Administrative Tribunals Act, 1985, Section 15(1)

(b); Karnataka Village and Local Boards Act, 1959, Sections 5, 42, 69, 80 Karnataka Panchayats

(Secretaries) (Cadre and Recruitment) Rules, 1970, Rules 2, 4, 5, 6,8; Karnataka State Civil

Services (General Recruitment) Rules, 1957 - Rule 10

17. GIST OF THE CASE: The Appellant was the Secretary of the Bajpe Panchayat, Mangalore

Taluka, appointed via the provisions of Karnataka Village and Local Boards Act, 1959. His

services were terminated on 4th November 1986 by the Chief Executive Officer of Mangalore

Taluk Development Board (Respondent no.1). The Appellant challenged his termination before

the Karnataka Administrative Tribunal. The tribunal rejected his application owing to lack of

proper jurisdiction as he was not in the civil service of the State or in a civil post under the State

(which status of his would have conferred jurisdiction to the Tribunal under Section 15(1)(b) of

the Administrative Tribunals Act 1985). The Appellant therefore appealed before the Hon’ble

Supreme Court, contending that he was a Secretary to the Panchayat and hence a State

Government servant serving in connection with the affairs of the local authority, which fact

conferred jurisdiction to the Tribunal over the matter.

18. OPERATING PORTION OF THE JUDGMENT: The Hon’ble Supreme Court observed that

a member (person) in the civil service of the State or in the civil post under the State meant a

Government servant of the State. Further that Section 80 of the Karnataka Village and Local

Boards Act, 1959 provided for the appointment of Secretary of Panchayats. Such appointments

were also governed by Karnataka Panchayats (Secretaries) (Cadre and Recruitment) Rules, 1970

and Karnataka State Civil Services (General Recruitment) Rules, 1957. A perusal of these Rules

clearly showed that functions, funds and properties of the Panchayat were under the ultimate

control of the State Government. Further the appointment of Panchayat Secretaries, pay-scale,

their termination from service, their liability for transfer and all other conditions of their services

were provided by laws made under Article 309 of the Constitution in respect of services of the

State Government servants. It was held that Secretaries of the Panchayats were Government



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servants, like other Government servants, who were subjected to the Rules to be made under the

proviso to Article 309 of the Constitution as regards their service conditions. Hence the

Karnataka Administrative Tribunal had the jurisdiction to preside over the matter of termination

of the Appellant from his services.

19. RATIO DECIDENDI: Panchayat Secretaries under the Act are State Government servants. If

that be so, they are persons who are appointed in the civil service of the State or civil post under

the State within the meaning of clause (b) of sub-section (1) of Section 15 of the Tribunals Act,

as would enable them to invoke the jurisdiction of the Tribunal for redressal of their grievances

in relation to any service matter concerning them.




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XXV. Madan Mohan Sharma and Anr. v. State of Rajasthan and Ors.

1. STATE: Rajasthan



4. NAME OF BENCH: A.K. Mathur and Altamas Kabir, JJ.

5. CASE NAME: Madan Mohan Sharma and Anr. v. State of Rajasthan and Ors.

6. CASE NO.: Civil Appeal No. 1506 of 2008 (Arising out of S.L.P. (C) No. 10270 of 2006)


8. NAME OF APPELLANT/S: Madan Mohan Sharma, Dharmendra Kumar Sharma.

9. NAME OF RESPONDENT/S: State of Rajasthan



(a) Whether the criteria mentioned in the circular dated 24th July 1995 or the amendment to the

Rajasthan Panchayati Raj Rules, 1996 should have been followed while making appointments

with respect to the advertisement dated 25th

May 1996.

(b) Whether the impugned appointment of the Appellants as Grade III teachers was valid.


(a) The selection criteria was changed to Higher Secondary Examination by the Rajasthan

Panchayati Raj Rules, 1996 during the pendency of the appointments, and hence the selection

should have been made on the basis of Higher Secondary Examination marks and not on the

basis of Secondary Examination marks.

(b) The High Court was erroneous in striking down the impugned appointments of the Appellants.




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16. PROVISIONS OF LAW INVOLVED: Rajasthan Panchayat Samitis and Zila Parishad

(Service) Rules, 1959- Rule 17(2); Rajasthan Panchayati Raj Rules, 1996 – Rules 266, 296, 274.

17. GIST OF THE CASE:

The Government of Rajasthan issued a circular on 24th

July 1995 for filling of vacancies in the

posts of primary teachers, in which the selection criteria was marks secured by the candidates in

Secondary Examination and B.Ed/ Basic School Training Course (BSTC). On the basis of this,

vacancies in the posts of Teacher Grade III were advertised by the Zilla Parishad, Sawai

Madhopur on 25th May 1996. By a subsequent circular dated 20th July 1996, the state

government changed the selection criteria to marks obtained in the Higher Secondary

Examination and B.Ed/ BSTC course, and the last date for application was set to be 20th

December 1996. Thereafter on 30th

December 1996 the Rajasthan Panchayati Raj Rules, 1996

were notified. Rule 266 therein specified the minimum eligibility criteria for appointment as

primary teachers to be Senior Secondary with BSTC course. Against this, a writ petition was

filed by one Radhey Shyam Sharma, and the Rajasthan High Court held that for the posts

already advertised the criteria prevailing on the date of issuance of advertisement (i.e., circular

dated 24th

July 1995) should be followed. Hence the selection process commenced and the merit

list was prepared on the basis of the Secondary Education qualification. The Appellants

challenged the lowering down of the eligibility criteria of Higher Secondary Education to the

Secondary Education via a writ petition. Meanwhile the preparation of merit list was completed

as per the circular dated 24th

July 1995. While the aforesaid writ petition was pending in the

Rajasthan High Court, the state government invoked its discretionary powers to relax the

educational qualifications under Rule 296 of Rajasthan Panchayati Raj Rules, 1996 and

appointed both Appellants as Grade III teachers. A number of writ petitions were again filed

against such appointment of the Appellants. A single bench of the High Court struck down Rule

296, holding it to be ultra vires and unconstitutional as it conferred unfettered powers upon the

executive, and also set aside the appointment of the Appellants. This decision was also upheld

by the division bench of the High Court. Hence the Appellants appealed to the Supreme Court.



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18. OPERATING PORTION OF THE JUDGMENT:

The Hon’ble Supreme Court observed that once the advertisement had been issued on the basis

of the circular obtaining at that particular time, the effect would be that the selection process

should continue on the basis of the criteria which was laid down and it cannot be on the basis of

the criteria which had been made subsequently. The relevant advertisement was issued when the

circular dated 24th July 1995 was in force, and the eligibility criteria of Secondary Examination

and B.Ed/ BSTC mentioned in that circular would have to be applied when making

appointments as per that advertisement.

The Supreme Court further upheld the decision of the High Court and observed that once Rule

296 was struck down, the appointment of the Appellants made under that Rule would not

survive. Hence, the impugned appointments were set aside and the appeal was dismissed.

Nevertheless, the Appellants had already been serving and had become over-aged. Hence they

were allowed to apply in case of any vacancy in future.

19. RATIO DECIDENDI:

Subsequent amendment of the Rules which was prospective cannot be made retrospective so as

to make the selection on the basis of the Rules which were subsequently amended.

20. OBITER DICTA:

Once the advertisement had been issued on the basis of the circular obtaining at that particular

time, the effect would be that the selection process should continue on the basis of the criteria

which were laid down and it cannot be on the basis of the criteria which had been made

subsequently.



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XXVI. Girjesh Shrivastava and Ors. v. State of M.P. and Ors.

1. STATE: Madhya Pradesh



4. NAME OF BENCH: G.S. Singhvi and A.K. Ganguly, JJ.

5. CASE NAME: Girjesh Shrivastava and Ors. v. State of M.P. and Ors.

6. CASE NO.: Civil Appeal No. 9227 of 2010 (Arising out of SLP (C) No. 20428/2004), Civil

Appeal Nos. 9228- 9230 of 2010 (Arising out of SLP (C) Nos. 22223-22225/2004), Civil Appeal

No. 9231 of 2010 (Arising out of SLP (C) No. 24787/2004) and Civil Appeal Nos. 9232-9233 of

2010 (Arising out of SLP (C) Nos. 24788-24789/2004).


8. NAME OF APPELLANT/S: Girjesh Shrivastava

9. NAME OF RESPONDENT/S: State of M.P.



(a) Whether a Public Interest Litigation was maintainable in case of a service matter.

(b) Whether the entire selection process was vitiated on grounds of some alleged irregularities in a

selected few cases.

(c) Whether the order of striking down the selection process could be given in a case where all the

affected persons were not impleaded as parties.


(a) The selection process was quashed in WP 1529/2001 and WP 63/2002, to their great prejudice

without impleading them to the proceedings.



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(b) The alleged improper recruitment of a handful of candidates had not flawed the entire selection.

(c) In a service matter where express remedy was available, a Public Interest Litigation is not

maintainable.


• Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors., (1998) 7 SCC 273; B.

• Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees’ Association

and Ors.,(2006) 11 SCC 731 (II);

• Dattaraj Nathuji Thaware v. State of Maharashtra and Ors., (2005) 1 SCC 590;

• Hari Bansh Lal v. Sahodar Prasad Mahto and Ors;

• Prabodh Verma and Ors. v. State of Uttar Pradesh and Ors., (1984) 4 SCC 251;

• Ramarao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors.,

(2004) 2 SCC 76;

• B. Ramanjini and Ors. v. State of Andhra Pradesh and Ors., (2002) 5 SCC 533;

• Charanjit Singh and Ors. v. Harinder Sharma and Ors., (2002) 9 SCC 732;

• Union of India and Ors. v. Rajesh P. U., Puthuvalnikathu and Anr., (2003) 7 SCC 285



16. PROVISIONS OF LAW INVOLVED: Section 40 of the Madhya Pradesh Panchayati Raj Act,

1993; Section 95 (1) read with Section 70 (2) of the Madhya Pradesh Panchayati Raj Avam

Gram Swaraj Adhiniyam 1993; the Madhya Pradesh Panchayat Contractual Teachers

(Conditions of Appointment and Service) Rules, 2001 – Rule 5(4)(b);




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Appellants were appointed as Grade II and III school teachers working in Panchayat Schools as

Samvida Shala Shikshak (contractual teachers). The said appointements were carried out under

Section 95(1) read with Section 70(2) of the Madhya Pradesh Panchayati Raj Avam Gram

Swaraj Adhiniyam 1993. These were challenged via two Public Interest Litigations (PILs) on the

ground that in contravention of the Madhya Pradesh Panchayat Contractual Teachers

(Conditions of Appointment and Service) Rules, 2001, no proper advertisement for reservation

for ex-servicemen had been made. It was also alleged that the members of the selection

committee had their near relatives appear as candidates for selection, which was in violation of

para 5 (viii) of the order passed by the State Government vide memo dated 11.7.2001. The High

Court accepted these challenges and set aside the appointment of the Appellants. Aggrieved by

this they filed a review petition in the High Court, which was also dismissed. Thereafter, the

doors of the Supreme Court were knocked.


The Hon’ble Supreme Court found considerable merit in the Appellants’ contentions. Reiterating

the relevant observations in various cases, it affirmed that a PIL in a service matter was not

maintainable. It was also held that not impleading the Appellants as parties in the petitions

before the High Court despite of the fact that the orders had a direct effect on their livelihood,

also violated the principle of audi alteram partem.

It was further noted that the presence of near relatives was not a ground to set aside some of the

appointments which were the subject matter of WP (C) No. 1529/2001. With respect to the other

Writ Petition, the District Collector found that out of the three alleged cases of relatives of the

selectors being selected, two were not 'relatives' as defined under Section 40 of the Madhya

Pradesh Panchayati Raj Act, 1993. One more candidate who qualified as relative was

interviewed, but not selected. On the basis of these facts, the Court concluded that the alleged

participation of near relatives in the selection process was not such a factor as to vitiate the entire

selection process. The fact that the appointed teachers had already been serving for three years at

the time of deciding upon the petition was also a relevant consideration which had to be kept in

mind before striking down the selection process as a whole.



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It was further noted that the application form had a column to specifically mention if the

candidate was a handicap or an ex- servicemen. Moreover out of the 9 ex-servicemen who

applied, 5 were selected. Hence it was held that the selection process did not exclude the ex-

servicemen.

Further taking note of the facts that cancellation of appointment would render most of the

appellants unemployed, their dim prospects of getting employment again due to their age, the

economic insecurity of their families, etc, the Supreme Court held that ‘equities were not

properly balanced in the exercise of discretion by the High Court.’ Hence the order of the High

Court was set aside and selection process was upheld.


(a) A PIL is not maintainable in a service matter.

(b) Not impleading the Appellants as parties in the petitions despite of the fact that the orders had a

direct effect on their livelihood, violated the principle of audi alteram partem.

20. OBITER DICTA:

The alleged participation of near relatives in the selection process was not such a factor as to

vitiate the entire selection process.



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XXVII. Jeet Singh and Ors. v. State of U.P. and Ors.



3. BENCH: Three Judges Bench

4. NAME OF BENCH: Kuldip Singh, V. Ramaswami and N.M. Kasliwal, JJ.

5. CASE NAME: Jeet Singh and Ors. v. State of U.P. and Ors.

6. CASE NO.: Civil Appeal Nos. 3732-3733 of 1982


8. NAME OF APPELLANT/S: Jeet Singh, Maya Wati Devi

9. NAME OF RESPONDENT/S: State of U.P



(a) Whether Nyaya Panchayat had jurisdiction to preside over matrimonial matters.

(b) Whether the consent order of the Nyaya Panchayat amounted to a valid grant of ‘judicial

separation’ of the husband and wife, in light of Section 3(7) of the U.P. Imposition of Ceiling on

Land Holdings Act, 1960.

12. GROUNDS OF CHALLENGE: That the Appellant and his first wife were judicially separated

on account of the consent order of the Nyaya Panchayat, hence their properties should have been

accounted for separately under the U.P. Imposition of Ceiling on Land Holdings Act, 1960.


• Sarju Prasad v. 4th Addl. Distt. Judge 1980 All LJ 515.

14. AREA OF DISPUTE NAME: Properties



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15. AREA OF DISPUTE CATEGORY: Dispute over ownership of buildings and land.

16. PROVISIONS OF LAW INVOLVED: Indian Penal Code – Sections 109, 494; U.P.

Imposition of Ceiling on Land Holdings Act, 1960 – Section 3(7); that U.P. Panchayat Raj Act,

1947 – Sections64, 82; Hindu Marriage Act, 1955 – Sections 10, 19, 23.


In the year 1966 the first wife of the Appellant filed a criminal complaint against him and his

father under Sections 494 and 109 of the Indian Penal Code (for marrying another woman while

the first wife was alive). As continuance of the criminal case would have ruined the family, both

parties decided to settle the matter by mutual consent. The Nyaya Panchayat accordingly passed

a consent order as per which the relationship of husband and wife between the parties was

deemed to be over. The first wife also gave up her status of heir and claimant in the Appellant’s

property, but in return she got two plots of land for her maintenance. Later, however, the Ceiling

Authorities (under the U.P. Imposition of Ceiling on Land Holdings Act, 1960) included the two

plots transferred to the first wife in the holdings of the husband. Both of them objected to such

an inclusion on grounds that the first wife was a ‘judicially separated wife’. The authorities

under the Land Ceiling Act, the District Court and the High Court rejected the aforesaid

contention, holding that theNyaya Panchayat had no jurisdiction to deal with matrimonial or

divorce cases and a consent order of the Panchayat could not make the parties judicially

separated. Hence an appeal was filed before the Hon’ble Supreme Court.


The Hon’ble Court noted that a married couple might live separately due to various reasons such

as cruelty, however that did not make them judicially separated. Under the Indian marital laws

District Court (Civil Court) had jurisdiction to grant a decree for judicial separation. Even such a

decree did not have the effect of dissolving a marriage. It was further observed that in order to

consider the properties of the wife as separate from the husband under the U.P. Imposition of

Ceiling on Land Holdings Act, 1960 it had to be proved that they are ‘judicially separated’.

Unless the separate living was a judicially ordered or recognised one, it would not qualify for

exclusion under the Act. In the context, therefore, it meant an act done in pursuance of an order

or direction of a court of competent jurisdiction. It was used in contrast to separate living by



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agreement of parties or at the intervention of mediators without the intervention of a judicial

proceeding in a competent court of law. In addition it was also held that U.P. Panchayat Raj Act,

1947 did not confer any jurisdiction on the Nyaya Panchayat to decide any matrimonial matter.

Hence the appeals were dismissed and the order of the High Court was upheld.


(a) Separation between husband and wife may take place in numerous ways which may force her to

live separately from him. But it is not every separation which is recognised by the U.P.

Imposition of Ceiling on Land Holdings Act, 1960. It should be judicial.

(b) U.P. Panchayat Raj Act, 1947 does not confer any jurisdiction on the Nyaya Panchayat to decide

any matrimonial matter. Even Section 82 of the Act only enables the Nyaya Panchayat to pass an

order by consent in any dispute which was cognizable and which was within their jurisdiction. If

the Nyaya Panchayat had no jurisdiction to decide a dispute under any of the other provisions of

Act this provision does not enable it to extend or assume any such jurisdiction to decide disputes

which are not covered by the other provisions in the Act.

20. OBITER DICTA:

If under any personal law, the person is not entitled to get any order of a court for a judicial

separation it would only mean that they would not be entitled to the benefit of exclusion

provided under Section 3(7) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960.



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STATE OF ANDHRA PRADESH

I. B.K. Parthasarathi v. Government of A.P. and Others

1. State - Andhra Pradesh

2. Court - High Court of Andhra Pradesh at Hyderabad

3. Bench - Division

4. Name of bench - Motilal B. Naik and J. Chelameswar, JJ.

5. Case no- 19068 of 1997, 23521 & 29460 of 1998

6. Name of the case- B.K. Parthasarathi v. Government of Andhra Pradesh and Others

7. Date of judgement- 14.09.1999

8. Appellant – B.K. Parthasarathi

9. Respondent – Government of Andhra Pradesh and Others

10. Case type – Writ Petition

11. Main law points involved- Whether the provisions under Section 19(3) of the A.P.

Panchayat Raj Act, 1994 was constitutionally valid under Articles 14, 19 and 21?

12. Grounds of Challenge-

If the provisions under Section 19(3) of the A.P. Panchayat Raj Act, 1994 were

constitutionally valid under Articles 14, 19 and 21?

13. Reference taken from the case-

• Eisenstadt v. Baird, 405 U.S. 38;

• Govind v. State of Madhya Pradesh, AIR 1975 SC 1378;

• Griswold v. Connecticut, 381 U.S. 479;

• Jamuna Prasad v. Lachhi Ram, AIR 1954 SC 686;

• Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295;

• Mukesh Kumar Ajmera v. State of Rajasthan, AIR 1997 Raj. 251;

• N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64;

• Roe v. Wade, 410 U.S. 113;

• Sakhawant All v. State of Orissa, AIR 1955 SC 166;

• Skinner v. Oklahoma, 316 U.S. 535;



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• Superintendent and Remembrancer of Legal Affairs v. Girish Kumar,AIR 1975 SC

1030;

• Missouri K. and T. Rly v. May, (1903) 194 US 267;

• State of Gujarat v. Ambico Mills, AIR 1974 SC 1300.

14. Area of Dispute Name- Disqualifications

15. Area of Dispute Category- More than two Child related

16. Provisions of Law Involved- Section 19(3), Section 177, section 179of Andhra Pradesh

Panchayat Raj Act; Article 14, Article 19 and Article 21 Constitution ofIndia.

17. Gist of case-

Aggrieved parties challenged the validity of Section 19(3) of Andhra Pradesh Panchayat Act,

1994 under Articles 14, 19 and 21 of the Constitution of India, which provided for the

disqualification of a person having more than two children for contesting in Panchayat

election. This abovementioned section had disqualified the petitioners from contesting

Panchayat election because they had more than two children at the time of election.

18. Operating part of judgments-

The court relied on a number of American and Indian cases and recognised the rights

incorporated in Articles 14, 19 and 21 but denied any infringement of these rights through

Section 19(3) of the A.P. Panchayat Act. The court held that the provision does not take

away the right of procreation from persons. It only creates a legal disability for those persons

who have more than two children as on the relevant date of seeking elected office under the

Act. The right to stand as candidate and contest in election is not a common right but a

statutory right and can only be exercised on the conditions laid down by the legislature. It

also does not infringe the right of privacy of the individuals.

Therefore, the Court dismissed the petitions on merits holding that Section 19(3) of the A.P.

Panchayat Raj Act, 1994 is not violative of any of the fundamental rights mentioned in the

petition.

19. Ratio Decidendi-

Population growth is one of the major problems facing this country and any measure to

control the population growth unless it impermissibly violates some constitutionally

protected right, must be upheld as a legally permissible exercise of legislative power. What is

sought to be curtailed by the Legislature in this case is not the right to procreation but the



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right to seek certain elected offices created under the Andhra Pradesh Panchayat Raj Act,

1994 if one begets more children than the prescribed limit.

20. Obiter Dicta-

The right of privacy which is held to be a facet of Article 21 of the Constitution, in this

country must also be subjected to similar restrictions which are held constitutionally

permissible in the context of the other facets of the right guaranteed under Article 21 of the

Constitution of India.



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II. Chavva Reddy Saraswatamma v. Presiding Officer-Cum-Election Officer/Nodal

Officer, Mandala Praja Parishad and Anr.


2. Court - High Court of Andhra Pradesh

3. Bench – Single

4. Name of bench – V.V.S. Rao J.

5. Case no-15887 of 2001

6. Name of the case- Chavva Reddy Saraswatamma v. Presiding Officer-cum-Election

Officer/Nodal Officer, Mandala Praja Parishad and Anr.


8. Appellant -Chavva Reddy Saraswatamma

9. Respondent -Presiding Officer-cum-Election Officer/Nodal Officer, Mandala Praja

Parishad and Anr.

10. Case type – Writ Appeal

11. Main law points involved- Whether issuance of order by the Respondent disqualifying

membership under Section 153 of the A.P. Panchayat Act, 1994 read with Rule 8 of A.P.

Panchayat Raj (Conduct of Elections of Members and Sarpanch of Gram Panchayat, Members of

Mandal Parishad and Members of Zilla Parishad) Rules, 1994 was valid since no notice was

served?


If issuance of order by the Respondent disqualifying membership under Section 153 of the A.P.

Panchayat Act, 1994 read with Rule 8 of A.P. Panchayat Raj (Conduct of Elections of Members

and Sarpanch of Gram Panchayat, Members of Mandal Parishad and Members of Zilla Parishad)

Rules, 1994 was valid in the event that no notice was served?


• S. Jyothi v. Presiding Officer/Election Officer, 2002(4) ALD 660 (DB);

• Ravi S. Naik v. Union of India, [1994]1SCR754.

14. Area of Dispute Name- Disqualification

15. Area of Dispute category- Office of Profit Related

16. Provisions of Law Involved-



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94

Section 153(1) of Andhra Pradesh Panchayat Raj Act, 1994; Article 40, Article 191(2), Article

226, Article 243O. Article 243P to 243ZG of Constitution of India; Rules 7, Rules 11, Rules 12,

Rules 13 and Rules 14 of Andhra Pradesh Panchayat Raj (Conduct of Elections of Members and

Sarpanch of Gram Panchayat, Members of Mandal Parishad and Members of Zilla Parishad)

Rules, 1994; Constitution of India (Seventythird Amendment) Act, 1992

17. Gist of case-

The petitioner contested and won MPTC election as a candidate of TDP.The next day she

submitted resignation to primary membership of TDP which was accepted on the same day. She

thereafter, joined Indian National Congress (INC) and contested and won. She got majority of

the votes and therefore was declared elected as President of Mandal Parishad, Kamalapuram. On

the eve of elections both political parties issued whip directing all the MPTC members to be

present in the meeting called for and vote for the candidate nominated by the respective political

parties. One K. Mohan Reddy, who was appointed as the whip of TDP informed the petitioner

that she had violated the party whip directing her to vote in favour of K. Parvathamma, TDP

nominee for the post of President. Based on such a complaint given by TDP whip, the

respondent issued a show-cause notice as to why her membership should not be cancelled. The

petitioner submitted explanation. The petitioner also filed a writ petition which was disposed of

directing the first respondent to consider the objections of the petitioner in the light of the law

declared by the court and instructions issued by State Election Commission. The respondent

thereafter issued Form No.V-C under Rule 13(7)(ii) and Rule 25(7)(ii) of the Rules declaring the

petitioner to have ceased to be a member of Kamalapuram II Mandal Parishad Territorial

Constituency. The first respondent filed a counter- affidavit stating that first respondent

considered the explanation submitted by the petitioner pursuant to show-cause notice and duly

followed the procedure before issuing impugned order. These facts attract disqualification under

Section 153 of the Act.

18. Operating part of judgment-

Relying on Article243F of the Constitution, Section 153 and other relevant provisions of the Act

and Rules framed by the legislature along with judgments rendered by the courts, the court

dismissed the petition. The court held that respondent had issued the show-cause notice to the

petitioner. Further, the petitioner had not specifically denied the averment made in the counter-

affidavit that the party whip was duly served on her at the time of meeting and respondent had



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95

informed all the MPTC members about the whips issued by the political parties, therefore, the

order was not in contravention of the laws in force.


Member who voluntarily gives up membership and joins another party cannot be elected as

nominee on behalf of the earlier party and if so, he will be disqualified as member.

20. Obiter Dicta-

It cannot be ignored that “the law for the time being in force” as mentioned in Article 243F(1)(a)

of the Constitution of India also includes the Constitution of India and as a necessary corollary

Article 191(2) and Tenth Schedule of the Constitution of India.



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III. D. Rajamani Reddy and Ors. v. Government of A.P. and Ors.



3. Bench – Single

4. Name of bench – V.V.S. Rao J.

5. Case no-4366 of 2007

6. Name of the case- D. Rajamani Reddy and Ors. v. Government of A.P. and Ors.


8. Appellant -D. Rajamani Reddy and Ors.

9. Respondent –Government of A.P. and Ors.


11. Main law points involved-

Whether removal of Sarpanch under Andhra Pradesh (Scheduled Castes, Scheduled

Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993

and Rules 3(1) and 12(a) of Andhra Pradesh Scheduled Castes, Scheduled Tribes and

Backward Classes - Issue of Community, Nativity and Date of Birth Certificates Rules,

1997, be allowed if he does not belong to the caste he claimed during his election?


If removal of Sarpanch under Andhra Pradesh (Scheduled Castes, Scheduled Tribes and

Backward Classes) Regulation of Issue of Community Certificates Act, 1993 and Rules

3(1) and 12(a) of Andhra Pradesh Scheduled Castes, Scheduled Tribes and Backward

Classes - Issue of Community, Nativity and Date of Birth Certificates Rules, 1997, be

allowed if he does not belong to the caste he claimed during his election?


• Dr. Ambedkar Seva Samajam, Bapatla v. Government of A.P. 2007 (1) ALD 520;

• Venkataraya v Sivarama Prasad AIR 1961 AP 250;

• Meghraj v. Delimitation Commission AIR 1967 SC 669;

• State of U.P. v. Pradhan Sangh Kshetra Samiti AIR 1995 SC 1512 : 1995 Supp (2) SCC

305;

• Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman AIR 1985 SC 1233;



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97

• Gujarat University v. N.U. Rajguru AIR 1988 SC 66;

• Anugrah Narain Singh v. State of U.P. (1996) 6 SCC 303;

• C. Subrahmanyam v. K. Ramanjaneyulu (1998) 8 SCC 703;

• Manda Jaganath v. K.S. Rathnam (2004) 7 SCC 492 : 2004 AILD 262 (SC);

• K.S. Rathnam v. Returning Officer W.P. No. 6653 of 2004;

• Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405;

• S.T. Muthusami v. K. Natarajan (1988) 1 SCC 572;

• N. Ponnuswami v. Returning Officer AIR 1952 SC 64;

• Election Commission of India v. Shivaji (1988) 1 SCC 277;

• M. Jagannadha Rao v. Government of A.P. 2007 (1) ALD 779

14. Area of dispute-Removal and No Confidence Motion

15. Area of dispute category-Suspension of Sarpanch and Other Members


Section 2(2), Section 15(2), Section 17, Section 18, Section 19, Section 20, Section 22, Section

211, Section 22, Section 261(1) and Section 617 of AndhraPradesh Panchayat Raj Act, 1994;

Section 5 and Section 21 of Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward

Classes) Regulation of Issue of Community Certificates Act, 1993; Constitution of India

(Seventy-thirdAmendment) Act, 1992; Andhra Pradesh Panchayat Raj (Amendment) Act, 2001;

Representationof Peoples Act, 1957; Andhra Pradesh Panchayat Raj (Election Tribunals in

respect of GramPanchayats, Mandal Parishads and Zilla Parishads) Rules, 1995; Rule 3, Rule

3(1), Rule 12 and Rule 19 of Andhra Pradesh Scheduled Castes, Scheduled Tribes and Backward

Classes - Issue of Community, Nativity and Date of Birth Certificates Rules, 1997; Article 15,

Article 226, Article 243N, Article 243O, Article 243ZG, Article 329 and Article 329B of

Constitution of India.

17. Gist of case-

Respondent and three others contested election of Panchayat. The respondent was declared

elected. The respondent claimed to be a candidate belonging to BC-A, i.e., 'Vannereddy',

recognized as BC in the State of Andhra Pradesh. The petitioners allege that the respondent hails

from Tamil Nadu and belongs to Naikkar caste, which is not one of the classes/castes recognized

as BC in Andhra Pradesh. They therefore assert that the respondent does not belong to BC in

Andhra Pradesh. The petitioners also referred to the evidence they procured in support of this



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98

contention to the Department of BC Welfare which in turn directed to take necessary action in

the matter.


The court relied on various judgments and dismissed the petition while also denying issuance of

writ of quo warranto, holding that as long as the certificate issued under the Certification Act,

1992 are recognized to be valid under the said Act, by reason of Section 20(aa) of the A.P.

Panchayat Raj (Amedment) Act, 2001, a member cannot be held disqualified unless such

certificate is cancelled under Section 5 of the Certification Act. All the formalities were

observed before the election took place and no defect other than the one pointed out has vitiated

the conduct of the elections. In the facts and circumstances of this case, discretion under Article

226 of the Constitution of India could not be exercised in favour of petitioners, especially when

there is a rebuttable presumption regarding the status of respondent by virtue of certificate issued

by the Revenue Officer.


When prima facie, the basis of qualification has a statutory support, usurpation of public office

cannot be presumed and discretion under Article 226 of the Constitution of India should not be

exercised to remove the person from the public office.

20. Obiter Dicta-

Writ of quo warranto is a prerogative writ. It is in the nature of a right of the superior Court

against a person who usurped public office.



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IV. D. Sathi Reddy v. Commissioner, Panchayat Raj A.P., Hyd., and Ors.



3. Bench – Division

4. Name of bench – M.S. Liberhan, C.J. and V.V.S. Rao, J.

5. Case no-1805 of 1826 of 1998

6. Name of the case- D. Sathi Reddy v. Commissioner, Panchayat Raj A.P., Hyd. and Otr.


8. Appellant -D. Sathi Reddy

9. Respondent – Commissioner, Panchayat Raj A.P., Hyd. and Others.


11. Main law points involved- Whether removal of Sarpanch without complying with the

principle of natural justice is valid or not?


If the removal of Sarpanch in the absence of compliance with the principles of natural justice is

valid?


• Managing Director E.C.I.L. v. B. Karunakar, AIR 1994 SC 1074;

• Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC 851;

• S.N. Mukherjee v. Union of India, AIR 1990 SC 1984;

• Sayed Yakoob v. Radhakrishnan, AIR 1964 SC 477;

• P. Kondal Reddy v. District Collector, 1988 (2) APLJ 487;

• Ram Gopal v. State of M.P., AIR 1970 SC 158;

• Union of India v. J.N. Sinha, AIR 1971 SC 40

14. Area of Dispute Name- Removal

15. Area of Dispute Category- Cancellation


Section 25, Section 249, Section 249(1) and Section 7 of the Andhra Pradesh Panchayat Raj Act,

1994; Article 40,Article 226, Article 243(B), 243(C)and Article 245 of the Constitution of India,

73rd

Amendment Act of the Constitution of India, 1992.



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100

17. Gist of case-

The petitioners were elected as Sarpanch of Peerzadiguda gram panchayat. Two show cause

notices were moved by the respondents alleging infraction of Section 249(1) of the A.P.

Panchayat Raj Act, 1994 with nine charges in notice. The basis for the notice was the report of

the Enquiry Committee. The petitioner replied to the notice but the District Collector ordered for

removal. Being aggrieved with the order, the petitioner filed a writ petition before the court on

the basis of violation of the principles of natural justice, on which court directed to go for an

appeal before Commissioner, Panchayat Raj who dismissed the appeal. The petitioner then filed

a writ petition, wherein the single bench of the court though set aside the order and ordered the

Collector to pass a fresh order, but did not allow the petitioner to report.


The court held that the case presents a clear violation of the principles of natural justice. It was

held that both the authorities had failed to apply their mind before determining the preconditions

for removal. Not giving the opportunity of hearing and following the mandatory requirements

was violation of the natural justice principles. It was observed that the High Courts had power to

correct any order passed in contravention of any law. Therefore, the case was decided in favour

of the petitioner.


If the finding of fact is perverse, it is also an error of law and can be rectified in judicial review.

The power under Section 249 of the Andhra Pradesh Panchayat Raj power has to be exercised

with due care and caution in consonance with the principles of natural justice.

20. Obiter Dicta-

The power to remove a person from an elected office is an extraordinary power.



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V. D. Srinivas Rao and Ors. v. State of A.P., P.R. and R.D. (Pts Iii) Dept. and Anr.



3. Bench – Single

4. Name of bench – G. Bikshapathy, J.

5. Case no-6242 and 8255 of 2000

6. Name of the case- D. Srinivas Rao v. State of A.P., P.R. and R.D. (PTS III) Dept. and

Anr.

7. Date of judgement-24.11.2000

8. Appellant -D. Srinivas Rao

9. Respondent –State of A.P., P.R. and R.D. (PTS III) Dept. and Anr.


11. Main law points involved- Whether the notification issued under Section 268 (11) (12)

(22) read with Section 95 of Panchayati Raj Act, 1998 was valid?


If the notification as issued under Section 268 (11) (12) (22) read with Section 95 of Panchayati

Raj Act, 1998 was valid?


• Ramesh Birch v. Union of India, AIR 1990 SC 560;

• Chandra Bali Prasad v. Rex., AIR 1952 All.795;

• V.M. Sanjanwala v. The State of Bombay, AIR 1961 SC 4;

• B. Shama Rao v. Union Territory, AIR 1967 SC 1480;

• Bishamber Dayal Chandra Mohan v. State of U.P, AIR 1982 SC 33;

• D.K. Trivedi and Sons v. State of Gujarat, AIR 1986 SC 1323;

• State of Sikkim v. Dorjee Tshering Bhutia, (1991) 4 SCC 243;

• Smt. Ram Pyari v. Jagdish Lal, AIR 1992 SC 1537;

• Pine Chemicals Ltd. v. Assessing Authority, (1992) 2 SCC 683;

• Delhi Laws Act case, AIR 1951 SC 332.

14. Area of dispute- Powers

15. Area of dispute category- Dispute on Powers of ZP/GP/BP



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102


Section 87, Section 89, Section 95 and Section 268 of the Andhra Pradesh PanchayatRaj Act,

1994; Section 4, Section 5, Section 6, Section 7, Section 8, Section 9,Section 10, Section 11, -

Section 12, Section 13(1), Section15 and Section 15(1)of the Mines and Minerals (Regulation

and Development) Act, 1957; Section 21 of the General Clauses Act, 1897 ; Panchayat Raj Rent

Act, 1974 ;State Panchayat Raj (Amendment) Act, 1985 ;Section 19 and Section 23 of Northern

India Ferries Act; Essential Commodities Act ; Constitution of India (Third Amendment) Act,

1954 ; Section 6(2) of the Bombay Tenancy and Agricultural Land Act; Rule 9, Rule 9V and

Rule 9W of the Andhra Pradesh Minor Minerals Concession Rules, 1966 ; Andhra Pradesh

Panchayat Raj (Auction of Sand in the Water Courses vesting in Gram Panchayat) Rules, 2000 ;

Rules 4(3) of Sikkim State Civil Service Rules, 1977 –Article 14, Article 21, Article 162, and

Article 166(3) of the Constitution of India.

17. Gist of Case-

In the Writ Petitions, the constitutional validity of G.O.Ms. No. 71 issued by the Government,

Panchayat Raj and Rural Development (PTS-III), framing the rules called A.P. Panchayat Raj

(Auction of Sand in the Water Courses vesting in Gram Panchayat) Rules, 2000 (hereinafter

called the “Auction Rules” for short) was assailed with consequential challenge to the auction

notifications issued in pursuance of the said G.O. The Rules stipulated the method and manner

of the auction of sand. The notifications were issued for auctioning various sand quarries in

pursuance of the G.O.Ms. No. 71. It was the prime contention of the petitioners that impugned

G.O.Ms. No. 71 was incompetent and ultra vires the Constitution and the provisions of the A.P.

Panchayat Raj Act, 1994. It was further stated that even the Rules framed under G.O.Ms. No. 71

were illegal and offended Articles 14 and 21 of the Constitution of India.


The court after hearing the arguments of both the parties declared sand as a minor mineral which

could not be dealt by the Gram Panchayat under the Panchayat Raj Act and no rules can be

framed under Section 268. Intention of the legislature was very clear and delegation was only to

the extent of minor minerals under Section 15(1) and not under any other provision. Therefore,

notification was ultra-vires the Constitution and power under the A.P. Panchayat Raj Act. Thus,

a source of power under Panchayat Raj Act was different from a power under Central Act and



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the source of power could not be treated as a substitute source of power in other statutes. Hence,

the Order was wholly unsustainable in law and the same was set aside.


An authority shall not delegate its powers, unless expressly mentioned in statute.

20. Obiter Dicta- ---



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VI. D. Sujata v. Chief Executive Officer, Zila Parishad and Ors.



3. Bench – Single

4. Name of bench – P.S. Narayana, J.

5. Case no-20175 of 2006

6. Name of the case- D. Sujata v. Chief Executive Officer, Zila Parishad and Ors.


8. Appellant -D. Sujata

9. Respondent –Chief Executive Officer, Zila Parishad and Ors.


11. Main law points involved- Whether the proceeding adopted for declaring the petitioner

as disqualified was illegal, arbitrary and without jurisdiction?


13. Whether the proceeding adopted for declaring the petitioner as disqualified was illegal,

arbitrary and without jurisdiction?


• Chava Rosaiah v. Chintala Venkateswarlu and Anr. 2004 (1) ALT 327 : 2004 (1) ALD

54


16. Area of Dispute Category-Office of Profit Related

17. Provisions of Law Involved- Section 14, Section 17, Section 18, Section 19, Section

19(2), Section 19(3), Section 20, Section 21, Section 21(2), Section 22, Section 22(2), Section

149, Section 149(1), Section 156, Section 156 (2) of the Andhra Pradesh Panchayat Raj Act,

1994

18. Gist of case-

The writ petition was filed for a writ of Mandamus declaring the proceedings issued by the

respondents intimating the petitioner that she incurred disqualification under Section 19 of the

A.P. Pachayat Raj Act to continue as M.P.T.C. Member, Koripally and President, Mandal

Parishad, Kodakandla, Warangal District, as illegal, arbitrary and without jurisdiction; and



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consequently direct the respondents to continue the petitioner as M.P.T.C. Member, Koripally

and President, Mandal Parishad, Kodakandla, Warangal District, till the alleged controversy

relating to disqualification is decided by competent court under Section 22 of the A.P. Panchayat

Raj Act, 1994, and pass such other suitable orders.


The Court reading out various provisions of the Act held that the provisions under Sections 22

and 156 were not complied with by the authorities. In such an event, impugned action could not

be taken against the petitioners. The District Panchayat Officer had executed his jurisdiction in

issuing proceedings. The said order was void and without jurisdiction.


Unless and until the election of the candidate is set aside by a competent election tribunal or the

disqualification is decided in accordance with the procedure as contemplated by the provisions

referred to a by the competent District Court, till then it cannot be said that the candidate

incurred disqualification under the Andhra Pradesh Panchayat Raj Act, 1994.




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VII. Gadi Koppula Rajaswami v. Election Tribunal, (Senior Civil Judge). Adilabad And

Others

1. State– Andhra Pradesh

2. Court–High Court of Andhra Pradesh

3. Bench– Division Bench

4. Name of Bench -B. Subhashan Reddy and Vaman Rao, JJ

5. Case no. -WP No. 24557 of 1998

6. Name of the cases -Gadi Koppula Rajamauli v. Election Tribunal, (Senior Civil Judge),

Adilabad and others

7. Date of Judgement -30.04.1999

8. Appellant -Gadi Koppula Rajamauli

9. Respondent - Election Tribunal, (Senior Civil Judge), Adilabad and others

10. Case Type– Writ Petition

11. Main Law Points involved–Whether the order passed by the Senior Civil Judge is valid

as per the Section 233 of the Andhra Pradesh Panchayat RajAct, 1990 read with Rule 2 of A.P.

Panchayat Rules, 1995?

12. Grounds of Challenge – If the order passed by the Senior Civil Judge is valid as per the

Section 233 of the Andhra Pradesh Panchayat RajAct, 1990 read with Rule 2 of A.P.

PanchayatRules, 1995.

13. Reference taken from the case–

• Ram Badam and others v. Union of India and others, 1998 (8) Supreme 342

14. Area of Dispute Name– Jurisdiction

15. Area of Dispute Category – Dispute over territorial jurisdiction of Sattes/ PRIs

16. Provision of Law Involved-

Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994; Rule 2(1) ofAndhra Pradesh

Panchayat Raj (Election Tribunal in respect Gram Panchayats, Mandal Parishads and Zilla

Parishads) Rules, 1995; Section 15 of the Andhra Pradesh Civil Courts Act, 1972; Indian

Succession Act,1925; Uttar Pradesh Tenancy Act, 1939; Section 26 of the Bihar and U.P.

Alteration of Boundary Act, 1968 ; Article 226 and Article 243 of the Constitution of India;

Code of CivilProcedure, 1908 (CPC)



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107

17. Gist of Case–

Section 233 of the Act stipulates that no election held under this Act shall be called in question

except by an election petition presented to such authority and in accordance with such rules as

may be made in this behalf. The Government under G.O. Ms. No.111 framed rules known as

A.P. Panchayat Raj (Election Tribunal in respect of Gram Panchayat, Mandal Parishad and Zilla

Parishad) Rules, 1995. Rule 2(i)(b) of the Rules, 1995 provides for the place of adjudication.

The respondents had challenged the election of the petitioner in the District Court of Adilabad.

The case was transferred in Senior Civil Judge court, where petitioner raised the question of

jurisdiction of court. The Senior Civil Judge had rejected the contentions and held that it had

jurisdiction to hear the case.

18. Operating Portion of the Judgement-

A plain reading of the relevant provisions no doubt indicates that it is only the Subordinate Judge

who had been constituted as Election Tribunal for calling in question the elections to the post of

a member of Zilla Parishad. But in this case also, as on the date when the question came up for

consideration before the Sub-Court, Adilabad, it was the Election Tribunal constituted under

Rule 2(2)(i)(b) of the Rules for the concerned area of Adilabad and as such, it had jurisdiction to

entertain the election petition. Thus, as on the date of the impugned order, the Subordinate

Judge’s Court at Adilabad was duly constituted as an Election Tribunal and, therefore, it had

jurisdiction to deal with the election petition pending before him. It was observed that the

impugned order did not suffer from any illegality. It was held that the Senior Civil Judge, (Sub-

Court), Adilabad must be deemed to be the Election Tribunal for trying the election petition filed

by Respondent No.2 calling in question the election of the petitioner and the proceedings in the

said election petition pending before the said Tribunal (Sub-Court) should be continued in

accordance with the rules and statutory provisions. The Writ Petition was accordingly dismissed.


While making a rule to effectuate the statutory remedy in Section 233 of the Andhra Pradesh

Panchayat Raj Act to avail the opportunity of challenging the election, the rule ought to be

worked as ‘Subordinate Judge’ and if there is no Subordinate Judge’s Court, it is the principal

Court of original jurisdiction since in interpreting a statutory provision or a rule, the presumption

is that an absurd result is not intended

20. Obiter Dicta: ---



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VIII. Gogineni Koteswara Rao v. Government Of Andhra Pradesh, Panchayat Raj,

Hyderabad and Others

1. State: Andhra Pradesh

2. Court: High Court of Andhra Pradesh

3. Bench: Division bench

4. Name of Bench: B. Subhashan Reddy and Vaman Rao, JJ.

5. Case no. : WP Nos. 21223, 10255 of 1997

6. Name of the cases: Gogineni Koteswara Rao v. Government of Andhra Pradesh, Panchayat Raj,

Hyderabad and others

7. Date of Judgement:13.04.1999

8. Appellant: Gogineni Koteswara Rao

9. Respondent: Government of Andhra Pradesh, Panchayat Raj, Hyderabad and others

10. Case Type: Writ Petition

11. Main Law Points involved: Whether the no-confidence motion under Section 245 of the A.P.

Panchayat Raj Act, 1994 against the petitioner was contrary to the statutes?

12. Grounds of Challenge:

Whether the no-confidence motion under Section 245 of the A.P. Panchayat Raj Act, 1994

against the petitioner was contrary to the statutes?

13. Reference taken from the case:

• Ajay Canu v. Union of India, AIR 1988 SC 2027;

• Central Bank of India v. Their Workmen, AIR 1960 SC 12;

• Mangilal v. Collector or Bhilwara, AIR 1958 Rajasthan 84;

• MedideRamaiah v. District Collector, Khammam, (1963) II An. W.R. 129;

• State of U.P. v. Babu Ram, AIR 1961 SC 751;

14. Area of Dispute: Others

15. Area of Dispute Category: Dispute among Panchayats and between Panchayat and State

Agencies

16. Provisions of Law Involved:



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Section 245 and Section 268 of the Andhra Pradesh Panchayat Raj Act,1994;Rule 2, Rule 6,

Rule 7 and Rule 11 of the Rajasthan Panchayat Election Rules;Section 28(2) of the Andhra

Pradesh (Telangana Area) Grama Panchayat Act, 1956.

17. Gist of Case:

Sections 245(1) and 245(2) of the Act contemplates that for giving notice of no-confidence

motion, not less than one half of the members shall sign the notice and for passing the motion,

not less than 2/3rds of the members should have voted in favour of the motion. Petitioner was

elected as president of a ‘parishad’. A motion of no-confidence against the petitioner was

presented to third respondent. The petitioner was elected as President of Mandal Praja Parishad,

Muppala Mandal, Guntur District in the election held on 18-3-1995. The motion of no

confidence against the petitioner was presented to the third respondent on 11-8-1997 signed by 8

members of Mandal Parishad which consisted of 11 members. The 2nd respondent (District

Collector, Guntur) convened a meeting of Mandal Parishad on 2-9-1997 to consider the said

motion of no-confidence in accordance with Section 245 of A.P. Panchayat Raj Act. Sub-section

(2) of Section 245 of the A.P. Panchayat Raj Act, 1994 (for short ‘the Act’) contemplated that if

a motion is carried with the support of 2/3rds of total number of Members against the Mandal

Praja Parishad President, the Government shall by notification remove him from office. In this

case, the total strength of the Mandal Praja Parishad members was 11 and 2/3rds thereof would

be 7.33. Under explanation to Rule 6 of the Rules relating to motion of no-confidence in Upa-

sarpanch of Gram Panchayat or Vice president/President of Mandal Parishad or Vice-

Chairman/Chairman of Zilla Parishad under sub-sections (1) and (2) of Section 245 of the Act

(for short ‘the Rules’), any fraction arrived at shall be construed as one. Thus, for the motion to

be carried, it shall have to be supported by 8 members.

In the meeting held on 2-9-1997, only 7 members were present and as such there was no quorum

for the meeting. Rule 7 of the Rules postulates that if there is no quorum the meeting shall be

dissolved. Inspite of this specific Rule, the 3rd respondent at the instance of the 4th respondent

had convened a meeting in which the no-confidence motion was put to vote and all the 7

members present, voted in its favour and the 3rd respondent declared that the motion against the

petitioner was carried. A copy of these proceedings was issued to the petitioner by the 3rd

respondent. It was alleged that the 4th respondent, who was the minister for Panchayat Raj and

was politically opposed to the petitioner, was bent upon issuing the notification under sub-



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section (2) of Section 245 of the Act for removing the petitioner. Thus, it was claimed that the

action of the 3rd respondent in convening the meeting and declaring that the motion was carried

was contrary to the Statute and Rules. It was asserted that there was no properly convened

meeting in the eyes of law. Under these circumstances, the petition was filed.

18. Operating Portion of the Judgement:

Relying on the minutes of the meeting, provisions of Section 245 of the Andhra Pradesh

Panchayat Raj Act, 1994 and a number of cases, the court held the motion to be invalid. The

action of the 3rd respondent declaring the motion of no-confidence against the petitioner passed

by order dated 2-9-1997 was considered illegal and in violation of Section 245 of the Panchayat

Raj Act read with the relevant rules and the said declaration of the minutes of the meeting by

respondent No.3 was quashed and consequently, respondent No.1 was restrained from acting

upon the said declaration of respondent No.3 and from issuing any notification removing the

petitioner from office. Accordingly, the writ petition was allowed.

19. Ratio Decidendi:

Rules must be consistent with the general policy of the Legislature envisaged under the Act.




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IX. B. Raghurami Reddy V. Government of A.P. and Ors.

1. State – Andhra Pradesh

2. Court – High Court of Andhra Pradesh

3. Bench – Single Judge Bench

4. Name of Bench - V.V.S. Rao, J.

5. Case no. - WP No. 7470 of 2007

6. Name of the case - B. Raghurami Reddy v. Government of A.P. and Ors.

7. Date of Judgement - 13.04.2007

8. Appellant - B. Raghurami Reddy

9. Respondent - Government of A.P. and Ors

10. Case Type – Writ Petition

11. Main Law Points involved –

a. Whether the impugned order is vitiated by lack of opportunity as mandated by the

proviso to Section 264(1) of the Andhra Pradesh Panchayat RajAct, 1994?

b. Whether personal hearing is part of natural justice in all circumstances?

12. Grounds of Challenge – Whether the impugned order is vitiated by lack of opportunity

as mandated by the proviso to Section 264(1) of the Andhra Pradesh Panchayat RajAct, 1994?

Whether personal hearing is part of natural justice in all circumstances?

13. Reference taken from the case –

• M.P. Industries Ltd. v. Union of India AIR 1966 SC 671;

• Union of India v. Jyoti Prakash AIR 1971SC 1093;

• Indru Ramchand Bharvani v. Union of India (1988) 4 SCC 1;

• State Bank of Patiala v.S.K. Sharma AIR 1996 SC 1669;

• M.C. Mehta v. Union of India AIR 1999 SC 2583;

• AligarhMuslim University v. Mansoor Ali Khan AIR 2000 SC 2783

14. Area of Dispute Name - Others

15. Area of Dispute Category – Dispute among Panchayats and between Panchayat and

State Agencies




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Andhra Pradesh Panchayat Raj Act, 1994 - Section 264; Andhra Pradesh Panchayat Raj Act,

1994 - Section 264(1); Mineral Concession Rules, 1960 - Rules 54, Mineral Concession Rules,

1960 - Rules 55; Constitution of India - Article 217(3).

17. Gist of Case –

The petitioner became highest bidder in the auction conducted by the fourth respondent in

October 2005 for leasing out fishing rights in Devaracheruvu tank, for one year. Fish was to be

harvested in June 2006, but he could not do so due to heavy inflows into Papagni River,

resulting in higher water levels in the tank. He approached the fourth respondent for extension of

lease for a period of five years. The Gram Panchayat passed resolution extending lease for 1416

Fasli subject to enhancement by 10% over above the auction amount. But when the fourth

respondent sought confirmation from the second respondent, the matter was kept pending. The

petitioner filed a petition seeking a direction to second respondent to confirm the extension of

lease resolved by the Gram Panchayat. Gram Panchayat submitted that the documents filed by

the petitioner were fabricated. The said writ petition, therefore, was closed on 16.10.2006. The

second respondent thereafter obtained a report from third respondent and passed orders

extending lease subject to enhancement of lease amount by 33%. Petitioner paid the difference

amount to the Gram Panchayat. However the Sarpanch filed a revision petition against the said

order and the said order was set-aside by the Government (First Respondent) and further

direction were given to Collector to conduct fresh elections.

The Petitioner argued that the impugned order of Government was vitiated by lack of

opportunity as mandated by the proviso to Section 264(1) of the Andhra Pradesh Panchayat Raj

Act, 1994. Secondly, he submitted that though the Government was exercising quasi-judicial

functions in revisional matters, the impugned order was bereft of any reasons since the proviso

to Sub-section (1) of Section 264 of the Act mandated that the Government shall not pass any

adverse order unless affected party had an “opportunity of making representation.”

The Writ Court in W.P. No. 24702 of 2006 invalidated the Government Order on the ground that

the first respondent failed to comply with statutory requirement under the proviso to Section

264(1) of the Act. The reason was that the petitioner had no reasonable opportunity. Thereafter

the Government issued notice of hearing. The petitioner received the same through the clerk of

the office of the Divisional Panchayat Officer. There was hearing which the petitioner did not

attend. He allegedly sent a telegram requesting for adjournment on the ground that he was



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suffering from cerebral malaria and was taking treatment in Balaji Nursing Home, Madanapalle.

The first respondent again issued a notice, which was received by the petitioner, fixing the date

of hearing again. The petitioner instead of filing representation discovering objections,

petitioner’s advocate allegedly filed a memo for adjournment stating that petitioner is

undergoing treatment and that he requires certain documents. In their discretion, the Government

declined to grant adjournment and proceeded with the revision. Hence this Writ Petition was

filed.

18. Operating Portion of the Judgement -

The Court relying on the cases of M.P. Industries Ltd. v. Union of India [1966]1SCR466 , Union

of India v. Jyoti Prakash (1971)ILLJ256SC , Indru Ramchand Bharvani v. Union of India

1992(59)ELT201(SC) held that the two principal modes of hearing are oral or personal before

adjudicatory authority and the other is hearing by way of a written representation. It is no doubt

true that oral personal hearing is more advantageous to affected person because he can persuade

the authorities to accept his point of argument. However, in all situations, oral personal hearing

is not compulsory. As in the case of revision under Section 264 of the Act, an opportunity of

making a representation is equally efficacious and it also amounts to “hearing.” However, it

must be clarified that strict compliance is required where a provision of law or a rule specifically

provides for oral person hearing.

The petitioner was given the opportunity thrice to attend the hearing, but he did not attend the

same and kept changing the Counsel every time and requesting for extension of time and due to

this the Gram Panchayat is incurring loss. The Court said that adequate opportunity was given

and the Government was right in coming to the conclusion that by adopting one method or other,

the petitioner went on carrying on fishing even after expiry of the lease. Therefore, the court held

that the impugned order did not suffer from any infirmity or illegality and dismissed the petition.


When a party to a judicial or quasi judicial proceeding is absent or adopting such delaying

tactics, in an application for judicial review he cannot be heard to complain that the order

impugned is bad for want of reasons

20. Obiter Dicta-

Even if the delegated legislation is silent, a person is entitled to an opportunity of making

representation but the same, however, does not give any right of being heard personally.



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X. Bandila Audi Seshamma v. Government of Andhra Pradesh and Ors.


2. Court: High Court of Andhra Pradesh at Hyderabad

3. Bench: Single Judge Bench

4. Name of Bench: G. Rohini, J.

5. Case no. : WP No. 1373 of 2005

6. Name of the cases: Bandila Audi Seshamma v. Government of Andhra Pradesh and Ors.

7. Date of Judgement: 14.02.2005

8. Appellant: Bandila Audi Seshamma

9. Respondent: Government of Andhra Pradesh and Ors.


11. Main Law Points involved

a. Whether the impugned notice is in conformity with the provisions of Section 245 of the

A.P. Panchayat Raj Act, 1994?

b. Whether the entire proceedings are liable to be declared as invalid?

12. Grounds of Challenge

Whether the impugned notice is in conformity with the provisions of Section 245 of the A.P.

Panchayat Raj Act, 1994? Whether the entire proceedings are liable to be declared as invalid?

13. Reference taken from the case

• Y. Raghava Reddy v. Government of A.P., 1999 (2) ALT 175;

• P. Bapu Raju v. Revenue Divisional Officer, Sangareddy, 2000 (2) ALD 317;

• K. Sujatha v. Government of Andhra Pradesh and Anr., 2004 (3) ALD 1

14. Area of Dispute Name- Others

15. Area of Dispute Category- Dispute among Panchayats and between Panchayat and

State Agencies


Andhra Pradesh Panchayat Raj Act, 1994 - Section 245; Andhra Pradesh Panchayat Raj Rules -

Rule 2



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17. Gist of Case-

The petitioner was elected as President of the Mandal Parishad. Ten members out of the 12

members of the Mandal Parishad gave a letter to the 2nd respondent informing him that the said

Members intend to move No Confidence Motion against the writ petitioner as she lost the

confidence of the majority of the members. They enclosed the notice in Form II so as to convene

a meeting to move No Confidence Motion as provided under the Rules. The Form-II notice

enclosed with the said letter was also signed by the said ten members and it was personally

handed over to the 2nd respondent. Thereafter, the 2nd respondent issued the notice in Form-V

enclosing the Form-II notice received by him from the ten members as well as the letter

addressed by the said ten members to the Revenue Divisional Officer. The letter signed by ten

members contained reasons and in categorical terms expressed that the Petitioner had lost their

confidence. There was nothing either under the Act or under the Rules, a specific form

prescribed for the said motion. Thereafter the 2nd Respondent issued a notice proposing to

convene the meeting of Mandal Parishad, to consider the Motion of No Confidence against the

petitioner on the basis of a notice received from 10 members of the Mandal Parishad.

Section 245 of the Act which deals with the Motion of No Confidence states that a motion

expressing want of confidence in the President of the Mandal Parishad may be made by giving a

written notice of intention to move the motion in such form and to such authority as may be

prescribed, signed by not less than one-half of total number of the members of the Mandal

Parishad and further action on such notice shall be taken in accordance with the procedure

prescribed. Rule 2 of the Rules prescribed the procedure that a notice of intention to make the

motion shall be made in Form II annexed to the Rules signed by not less than one-half of total

number of the Members together with a copy of the proposed motion and shall be delivered in

person by any two of the members who signed such notice to the Revenue Divisional Officer -

Sub-Collector or Assistant Collector having jurisdiction, as the case may be. For further steps to

be taken the Rule 3 provides that the concerned officer specified in Rule 2 shall then convene

and preside over a meeting for the consideration of the motion on a date appointed by him which

shall not be later than 30 days from the date on which the notice under Rule 2 was delivered to

him and that he shall give to every member of the Mandal Parishad the notice of not less than 15

clear days in Form-V annexed to these Rules either in English or in Telugu or in Urdu language

whichever is applicable.



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The petitioner contended that the impugned notice was not in conformity with the provisions of

Section 245 of the A.P. Panchayat Raj Act, 1994 read with Rule 2 of the Rules and therefore the

entire proceedings was liable to be declared as invalid.


The contention of the Petitioner was that Rule-2 expressly provides that the notice of intention to

make the Motion of No Confidence in Form-II together with a copy of the proposed motion shall

be delivered to the Revenue Divisional Officer. This requirement was mandatory and cannot be

dispensed with on any ground whatsoever. The Court held that the letter addressed to 2nd

respondent was nothing but proposed motion. In absence of any specific form, there was no

justifiable reason to hold the letter signed by all ten members in which they categorically

expressed their No Confidence in Petitioner was not “proposed motion” as specified under Rule

2 of Rules. Proposed motion not in a particular form had not resulted in any prejudice to

Petitioner. In Y. Raghava Reddy v. Government of A.P., 1999(2) ALD298 (DB) and P. Bapu

Raju v. Revenue Divisional Officer, Sangareddy, 2000(2)ALD317, the Court examined the

scope and object of Rule 3 as well as the requirement under Form-V and held that enclosing a

copy of the proposed Motion of No Confidence with the Form-V notice is not mandatory.

The Court held that the mere fact that the proposed motion was not in a particular form did not

result in any prejudice to the petitioner. A Division Bench of AP High Court in Y. Raghava

Reddy’s case and reiterated by the Full Bench in K. Sujatha v. Government of Andhra Pradesh

and Anr., AIR2004AP400 (FB), held that the Legislature has not provided that non-compliance

of procedural provisions of service of notice or the form of notice would render the Vote of No

Confidence invalid and the object of procedural law is only to apprise the member or the

President that the Vote of No Confidence would be held on a particular date and time for

consideration of No Confidence. Therefore, the petition was dismissed.


Enclosing copy of proposed Motion of No Confidence with Form-V notice is not mandatory.




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XI. Banne Gandhi and Ors. v. District Collector and Ors





5. Case no. - WP No. 23315 of 2006

6. Name of the case - Banne Gandhi and Ors. v. District Collector and Ors.


8. Appellant - Banne Gandhi and Ors.

9. Respondent - District Collector and Ors.



a) Whether the action taken by the respondent number 3 in assigning Plot Nos. l to 22 to the

respondents 5 to 26 are illegal and arbitrary?

b) Whether the land classified as Grama Kantam land vests in Gram Panchayat?

12. Grounds of Challenge – Whether the action taken by the respondent number 3 in assigning

Plot Nos. l to 22 to the respondents 5 to 26 are illegal and arbitrary? Whether the land classified

as Grama Kantam land vests in Gram Panchayat?


• Sarpanch, Polakala Gram Panchayat, Irala Mandal, Chittoor District v. District

Collector,Chittoor 1997 (2) ALT 486

14. Area of Dispute – Properties

15. Area of Dispute Category- Dispute over Ownership of Buildings and Lands


Section 58, Section 58(1), Section 58(2) of the Andhra Pradesh Panchayat Raj Act, 1994 Andhra

Pradesh; Order 15 of Board of Revenue Standing Order ; Article 14 and Article 21 of the

Constitution of India


The Sarpanch of Nakkarta Gram Panchayat passed a resolution for allotment of remaining

vacant Grama Kantam land for providing house sites to poor Scheduled Caste beneficiaries.



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Therefore, possession certificates were issued to respondents 5 to 26 assigning Ac.0.18 guntas in

their favour. The Petitioners submitted that when once the land is assigned without cancelling

the assignment and without issuing notice to the petitioners, the third respondent cannot

reassign/reallot the same land to respondents 5 to 26. It was also submitted that the Grama

Kantam land vests in the Gram Panchayat, and therefore, under Section 58 of the Andhra

Pradesh Panchayat Raj Act, 1994 unless the Gram Panchayat is divested by proper notification,

it is not competent for the third respondent to assign the land in favour of the contesting

respondents.

The Respondent contended that the writ petitioners were never allotted the Grama Kantam land,

and the petitioners created bogus documents, and filed this writ petition.The petitioners owned

lands and houses in the Village and they were not eligible for assignment. Therefore, they could

not challenge the assignment made in favour of poor beneficiaries.

18. Operating Portion of the Judgement –

When only specific items of land find place in Sub-section (1) of Section 58 of the Act, it is not

possible to enlarge these items by including the Government land classified as grama kantam

land. The Court held that Section 58(1) of the Andhra Pradesh Panchayat Raj Act, 1994 was not

attracted as Grama Kantam land did not fall in the categories enunciated in the Section. The

Court held that the allotment by the Respondent number 3 is valid. The village site poramboke

land (gramanatham area/grama kantam land) vested in the Government and was intended for

being allotted as house sites in the future. The total extent of land owned by the petitioners

showed that the petitioners were certainly not entitled for assignment of house sites, much less,

agricultural land. The writ petition was misconceived, and was not bona fide. Hence the Court

dismissed the writ petition with costs.


According to Sub-section (1) of Section 58 of the Andhra Pradesh Panchayat Raj Act only

certain classes of lands described therein which are not required by the Government for any

specific purpose vests in the Gram Panchayat and Grama Kantam land is not one of those.

20. Obiter Dicta: ----



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XII. Challa Satyanarayana v. Tadi Lakshmana Rao and Ors




4. Name of Bench: V.V.S. Rao, J.

5. Case no. : Writ Petition No. 16264 of 2007

6. Name of the cases: Challa Satyanarayana v.Tadi Lakshmana Rao and Ors.


8. Appellant: Challa Satyanarayana

9. Respondent: Tadi Lakshmana Rao and Ors.


11. Main Law Points involved

Whether the Tribunal has jurisdiction to entertain the EOP No. 4 of 2006 only on the ground of

disqualification under Section 19(3) of the Act?


Whether the Tribunal has jurisdiction to entertain the EOP No. 4 of 2006 only on the ground of

disqualification under Section 19(3) of the Act?


• D. Sujatha v. Chief Executive Officer, Zilla Parishad, Warangal 2007 (2) ALT 248: 2007 (2)

ALD 249;

• Kummari Ramulu v. Gangaram Penta Reddy 2004 (3) ALT 788

14. Area of Dispute Name- Election

15. Area of Dispute Category-Eligibility of Candidates


Section 19(3), Section 22(1), Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994;

Order 14 Rule 2 Code of Civil Procedure, 1908 (CPC); Rules 3 and Rule 7(2) of the Andhra

Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads

and Zilla Parishads) Rules, 1995.

17. Gist of Case-



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The Petitioner successfully contested the election to the office of Sarpanch. The First respondent

approached the Election Tribunal under Section 233 of the Act contending that the Petitioner

incurred disqualification under Section 19(2) of the Act by reason of having three children.

In the said election petition, the petitioner filed an application purportedly under Rule 2 of Order

XIV of Code of Civil Procedure, 1908 (CPC), to frame preliminary issue, whether Tribunal had

jurisdiction to entertain the EOP No. 4 of 2006 only on the ground of disqualification

underSection 19(3) of the Act. By impugned order dated 20-6-2007, the Tribunal rejected the

said application being I.A. No. 187 of 2007 holding that the application under Section 22(1) of

the Act as well as Section 233 of the Act read with Rule 3 of Rules, 1995 (the Rules, for brevity)

was maintainable. Hence this Writ petition was filed.


The Court agreed with the Tribunal’s observation that the Order XIV Rule 2 of CPC would be

applicable even to election matters. The said observation was directly contra to the Division

Bench judgment of AP High Court in Kummari Ramulu v. Gangaram Penta Reddy 2004(3)

ALD280, wherein it was held that except the provisions of CPC referred under Rule 7 (2) of the

Rules, all other provisions and powers of CPC cannot be exercised by the Tribunal. Therefore,

the application filed by the petitioner was not maintainable. It was held that the impugned order

passed by the Tribunal did not warrant interference. The writ petition was accordingly

dismissed.

19. Ratio Decidendi: Order XIV Rule 2 of Civil Procedure Code, 1908 would be applicable even to

election matters.




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XIII. Simmiti Arjuna v. Pappala Narasaiah and Anr





5. Case no. - WP No. 19518 of 2004

6. Name of the case - Simmiti Arjuna v. Pappala Narasaiah and Anr.


8. Appellant - Simmiti Arjuna

9. Respondent - . Pappala Narasaiah and Anr



a) Whether the Act or any provisions in any of the Rules made under the Act prohibit a

person from voting in more than one Gram Panchayat?

a) Whether it would be valid for the Election Tribunal to declare the election petitioner as

duly elected after setting aside the election of the person whose election is challenged?

12. Grounds of Challenge –

Whether the Act or any provisions in any of the Rules made under the Act prohibit a person

from voting in more than one Gram Panchayat? Whether it would be valid for the Election

Tribunal to declare the election petitioner as duly elected after setting aside the election of the

person whose election is challenged?


• K. Sundara Rao v. V. Raghava Rao, 1983 (II) An.WR 412;

• R. Jayalakshmamma v. Election Tribunal-cum-Senior Civil Judge, Punganur, Chittoor,

2004 (4) ALD 525

14. Area of Dispute Category– Election

15. Area of Dispute Name – Eligibility of Candidates


Andhra Pradesh Panchayat Raj Act, 1994 ; Rule 13 of Andhra Pradesh Panchayat Raj (Election

Tribunals inrespect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995.



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17. Gist of Case-

The petitioner was elected as Sarpanch in the election for the office of Sarpanch. The First

respondent challenged the election before the Election Tribunal on the ground that the votes in

Booth No. 5 at Serial Nos. 792 and 793 of Lemarthi Agraharam Village are also registered

voters of Edulapaka Bonangi Village at Serial Nos. 981 and 982 of the voters list of the said

village, and that those two voters having voted in both Gram Panchayat Elections those two

votes are invalid votes.The Election Tribunal set aside the election of the petitioner and further

declared that first respondent was duly elected to the office of the Sarpanch. The Election

Tribunal recorded a finding that the two persons were disqualified because they had already cast

their vote in E. Bonangi Village before reaching Lemarthi Agraharam Village.

The petitioner submitted that under the provisions of the A.P. Panchayat Raj Act, 1994 or the

Rules made there under, there was no prohibition for a person to be registered as voter in two

Gram Panchayats and therefore, the Tribunal committed grave error in treating the vote of P.W.4

and his wife as invalid. Secondly, he contended that the order of the Tribunal declaring first

respondent’s election was vitiated, as first respondent did not specifically ask for any such relief.

The Petitioner placed reliance on Sub-section (6) of Section 11 of the Act and Rules 13 and 15

of the Andhra Pradesh Panchayat Raj Rules, 1995. He also placed strong reliance on the

Division Bench judgment of AP High Court in K. Sundara Rao v. V. Raghava Rao [1983 (2)

An.WR 412 (DB)]. But first respondent opposed the writ petition contending that the impugned

order of the learned Tribunal did not suffer from any infirmity and that the Division Bench

judgment cited by the Petitioner had no application.


With respect to the first issue, the Court held that in 1994 Act there is no such provision which is

in similar terms as that of Section 14-B(2) of the 1964 Act. However, Section 11(6) is in pari

materia with Section 14-C(7)of the 1964 Act and when the provision is in pari materia the

interpretation placed by a Court of record even with reference to repealed Act is a precedent

binding on all authorities while interpreting an amended provision. There was no reason

warranting any deviation from the law laid down by this Court in K. Sundara Rao v. V. Raghava

Rao. Therefore what was prohibited was vote by same person in more than one ward and no

prohibition for a person to vote in two Gram Panchayats on the same day if he is registered as

voter. On that ground, therefore, the Election Tribunal could not have invalidated the votes of



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P.W.4 and his wife. The Court held that the judgment of the Tribunal suffers from this infirmity

which is beyond cure.

The Rules made in G.O.Ms. No. III, dated 3.3.1995 which are comprehensive have to be

scrupulously followed by the Election Tribunal. Therefore, an election of the petitioner who

seeks declaration must specifically plead under Rule 13 that he be declared as elected and prove

that he received majority of the valid votes. In this case the First respondent sought for

declaration that the election of the petitioner herein as Sarpanch of is null and void and no

specific relief was prayed under Rule 13 of the Rules. Therefore, it was not proper for the

Election Tribunal to grant such declaration and therefore the impugned order was liable to be

quashed. As a result of the above reason the writ petition succeeded and a writ in nature of

certiorari was issued.


Election Tribunal cannot make any declaration to declare any person as elected as incidental

relief after the declaration of the elected candidate is rendered invalid.




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XIV. Chandra Reddy v. Government of A.P. and Ors.





5. Case no. - WP No. 26925 of 2001

6. Name of the cases - V. Chandra Reddy v. Government of A.P. and Ors.


8. Appellant - V. Chandra Reddy

9. Respondent - Government of A.P. and Ors.

10. Case Type – Writ petition

11. Main Law Points Involved –

Whether the impugned proceedings of the District Collector in appointing the third respondent

as Panchayat secretary are vitiated by illegality?


Whether the impugned proceedings of theDistrict Collector in appointing the third respondent as

Panchayat secretary are vitiated by illegality?

13. Reference taken from the case - None

14. Area of Dispute – Service

15. Area of Dispute Category-


• Rule 3 of Andhra Pradesh Panchayat Raj Subordinate Service (Supplementary) Rules,

2001.

• Rule 3 of Andhra Pradesh Panchayat Raj Subordinate Service Rules, 1998.


The petitioner was the Sarpanch of the fourth respondent Gram Panchayat. The Petitioner

contended that the second respondent (District Collector) had no power to appoint a Village

Development Officer (hereinafter VDO) as Panchayat Secretary to the notified Gram Panchayat.

As per G.O.Ms. No. 369 a Village Development Officer, Grade-I, Grade-II or Grade-III can also

be posted as Panchayat Secretary in a non-notified Gram Panchayat. However, as per paragraph



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8 of the Government Order, only Executive Officers, Gram Panchayats Grade-I and Grade-II can

be posted and are re-designated as Panchayat Secretaries.

The Andhra Pradesh Government promulgated Panchayat Raj (Executive Subordinate) Service

Rules, 1982. As per the Rule 2, Divisional Panchayat Officer, Extension (Panchayats), Executive

Officer, Gram Panchayat, Grade-I and Grade-II, constitute the Panchayat Raj Subordinate

Service. Executive Officers Grade-I and Grade-II are treated as categories-3 and 4 respectively.

As per Rule 3, Executive Officers, Grade-I are appointed either by promotion from the category

of Executive Officers Grade-II or by transfer of VDOs Grade-I subject to condition that in a

cycle of five vacancies, the third and fifth vacancy shall be filled up by appointment by transfer

from the category of VDOs Grade-I. Insofar as the post of Executive Officer Grade-II is

concerned, the same can be filled up either by direct recruitment or transfer of Junior Assistants-

cum-Bill Collectors and Junior Assistants of Gram Panchayats, by transfer of Junior Assistants

of the offices of Divisional Panchayat Officers and District Panchayat Officers and by transfer of

VDOs Grade-II. This is also subject to the condition that in a cycle of eight vacancies, the fourth,

sixth and eighth vacancy shall be filled up by transfer of VDOs Grade-II. According to Rule 5 of

1982 Rules , a VDO Grade-II to be eligible to be appointed as Executive Officer Grade-I by

transfer must have put in eight years of service as VDO Grade-I. Likewise, a VDO Grade-II to

be considered for appointment as Executive Officer Grade-II, must have put in five years of

service as VDO. The rules made in 1982 were superseded by new set of rules issued in G.O.Ms.

No.132, PR & RD (E.IX) Department, dated 24-3-1998. These rules called ‘A.P. Panchayat

Subordinate Service Rules, 1998 were issued in exercise of the powers conferred under proviso

to Article 309 of the Constitution of India read with Sub-section (3) of Section 36 of A.P.

Panchayat Raj Act to govern various posts including the post of Executive Officer Grade-I and

Grade-II who form categories 2 and 3 respectively of Class A (supervisory posts). Rule 3 dealt

with the method of appointment and appointing authority.

Rule 3 of 2001 Rules consisted of five provisos which laid down modalities as to posting of

VDOs Grade-I, Grade-II and Grade-III to the post of Panchayat Secretary depending on the

income of the Gram Panchayat. The higher the income of the Gram Panchayat, the higher must

be the grade of the Executive Officer/Panchayat Secretary. It was made clear by fourth proviso

to Rule 3 which laid down that if the Panchayat’s income is less than the category mentioned in

the third proviso, it will be categorised into another category starting from the higher income



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Panchayats out of the left over Panchayats and qualified VDOs would be posted in these

Panchayats.


The Court held that the various rules referred would show that a Village Development Officer

was also eligible for being appointed by transfer to the post of Executive Officer, Gram

Panchayat. Further, as per Rule 3 of 2001 Rules, the post of Executive Officer Special Category

IV (Panchayat Secretary) could also be filled up by appointment by transfer of VDOs. But it was

always permissible to post a VDO Grade-I, Grade-II or Grade-III to the next higher category

subject to availability of vacancies in the category of Panchayat Secretary. As per G.O.Ms. No.

384, dated 22-12-2001 (2001 Rules), the post of Executive Officers Special Categories - I, II, III,

IV and V (Panchayat Secretary) could also be filled up by transfer from the post of VDO of

respective Grade/Category. In this case, the District Collector had precisely done the same thing

by first appointing the third respondent by transfer to the category of Executive Officer Special

Category IV in A.P. Panchayat Subordinate Service and then posted her as Executive Officer of

Bollaram Gram Panchayat, Jinnaram Mandal. Hence the Petition was dismissed.


Village Development Officer can be posted as Panchayat Secretary to a notified Gram Panchayat




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XV. Yeripalli Ramulamma v. District Collector and Ors.




4. Name of Bench - V.V.S. Rao, J

5. Case no. - WP No. 18567 of 2006

6. Name of the case - Yeripalli Ramulamma v.District Collector and Ors.


8. Appellant - Yeripalli Ramulamma

9. Respondent - District Collector and Ors.



Whether the writ petition is maintainable or not?

12. Grounds of Challenge – Maintainability of Writ Petition

13. Reference taken from the Case - none

14. Area of Dispute Name – Election

15. Area of Dispute Category- Eligibility of Candidates

16. Provisions of Law Involved- Section 233Andhra Pradesh Panchayat Raj Act, 1994;

Rule 16, Rule 56, Rule 57, Rule 59, Rule 60, Rule 61, Rule 62, Rule 63 and Rule 64of Andhra

Pradesh Panchayat Raj (Conduct of Elections) Rules,2006 Reference taken from the case - None


The Petitioner contested as a Member of Ward. The petitioner alleged that she secured ninety six

votes, whereas the fifth respondent got ninety three votes and that the Returning Officer issued

“return of election” in Form No. XXVIII under Rule 62(1)(b) of the Andhra Pradesh Panchayat

Raj (Conduct of Elections) Rules, 2006, declaring her as elected, and that in spite of the same,

she was not being allowed to represent Ward No. 8, but the fifth respondent was permitted to

represent Ward No. 8. Therefore, she filed this writ petition seeking a direction to respondents 1

to 4 to consider her as elected Member of Ward No. 8.



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The Court held that after completing the counting in accordance with Rules 56 to 61 of the

Rules, the Returning Officer shall have to declare in Form No. XXVII the candidate to whom the

largest number of valid votes have been given. The next step is to complete and certify the return

of election in Form No. XXVIII, and a candidate or his agent shall be permitted to take a copy of

the extract of return of election. Then comes Rule 63 of the Rules, which requires the Returning

Officer to grant a certificate in Form No. XXIX to a candidate who has been declared elected in

Form No. XXVII under Rule 62(1)(a). Therefore, the certification i.e., the return of election in

Form No. XXVIII is not the conclusive proof of declaration of the candidate nor amounts to the

certificate under Rule 63 of the Rules. The candidate, who is given a declaration in Form No.

XXVII and the certificate in Form No. XXIX is only deemed to be elected in the election. In this

case, the petitioner produced the election return in Form No. XXVIII, which was not the

conclusive proof of election.

The Court also said that if petitioner had any grievance, her remedy was to file an Election

Original Petition under Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994. Hence the

writ petition was dismissed without cost.


The certification i.e., the return of election in Form No. XXVIII is not the conclusive proof of

declaration of the candidate nor does it amount to the certificate under Rule 63 of the Rules.




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XVI. Kothota Marine Fishermen Co-operative Society v. Director of Fisheries and Ors.




4. Name of Bench: V.V.S. Rao, J.

5. Case no. : WP No. 6877of 2005

6. Name of the Cases: Kothota Marine Fishermen Co-operative Society v. Director of

Fisheries and Ors.


8. Appellant: Kothota Marine Fishermen Co-operative Society

9. Respondent : Director of Fisheries and Ors.


11. Main Law Points Involved

Whether the Gram Panchayat has power to lease out fishing rights in irrigation channels and

drains?


Whether the Gram Panchayat has power to lease out fishing rights in irrigation channels and

drains?


• Vaddavalli Fishermen Cooperative Society Limited v. Rayidi Krishna Kumari 2000 (4)

ALD 259: 2000 (4) ALT 1;

• Ipur Gram Panchayat v. Government of Andhra Pradesh 2000 (5) ALD 24 : 2000 (4)

ALT 678;

• Jalla Sesiah v. Moka Venkateswarlu AIR 1991 AP 343; A-One Granites v. State of U.P.

14. Area of Dispute Name -Others


State Agencies

16. Provisions of Law Involved - Section 2(43), Section 56(1), Section 80(1),Section 80(2)

and Section 81 of the Andhra Pradesh Panchayat Raj Act, 1994 ;Section 6 of Indian Fisheries



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Act, 1897; Rules 1, Rules 2, Rules 3, Rules 6, Rules 7 and Rules 9 of Indian Fisheries Rules;

Section 85, Section 85(1) and Section 85(2) of Andhra Pradesh Gram Panchayat Act, 1964;

Article 372 of the Constitution of India.

17. Gist of Case-

The writ petition was filed seeking a writ of mandamus declaring the inaction of the respondents

1 to 4 in not restraining the fifth respondent in disposing of the fishing rights in irrigation

channels/drains as illegal and arbitrary. The petitioner also sought consequential direction to

respondents 1 to 4 to lease out the said irrigation channels in favour of the petitioner Society

duly restraining fifth respondent in disposing of the fishing rights in the channels.

Though the Gram Panchayat, constituted under A.P. Panchayat Raj Act, 1994 has powers under

Section 56 of the Act to lease out fishing rights in tanks vested in it, under Section 80 of the Act,

Gram Panchayat has no powers to lease out irrigation channels (inland fisheries) to anybody.

Under the said Government Order, it is only the Department of Fisheries, which has to lease out

by giving preference to duly registered fishermen co-operative societies. The petitioner had

alleged that the fifth respondent had been leasing out the fishing rights in inland fisheries.

Aggrieved by the same, the petitioner made a representation to respondents 3 and 4, whereupon,

the third respondent requested the second respondent to address the District Panchayat Officer,

West Godavari, to issue suitable instructions to Gram Panchayats not to lease out fishing rights

in irrigation channels and drains. No action, however, was taken. But, the third respondent

addressed a letter to the Panchayat Secretary of the fifth respondent informing that the fishing

rights in irrigation channels and drains may not be disposed of by the Gram Panchayat. In spite

of the same, the Gram Panchayat was still disposing of the fishing rights without any authority,

and hence this writ petition was filed.


Section 56 of the Andhra Pradesh Panchayat Raj Act, 1994, nowhere vests the absolute powers

in the Gram Panchayat in respect of all water bodies, all major and minor irrigation works in

absolute terms. The only area where Gram Panchayat can exercise its right is minor irrigation

tanks subject to conditions that may be prescribed. The Court held that as per the provisions of

Panchayat Raj Act, Fisheries Act, the Rules made there under and the policy guidelines in G.O.

Ms. No. 776 would show that Section 80 of the Act does not confer any power on the Gram

Panchayat to lease out the fishing rights to an individual or to any society if such water body is



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included in Schedule I of the Rules framed under Fisheries Act. Section 80 of the Act deals with

vesting of water works in Gram Panchayat and as per the proviso to Section 80(1) of the Act,

any work connected with the work of irrigation does not vest in Gram Panchayat. Sub-section

(3) of Section 80 of the Act empowers the Government to define or limit the extent of control by

the Gram Panchayat or assume for itself the administration of any public source of water supply

after consulting the Gram Panchayat. Therefore, when it comes to leasing out fishing rights in

any water-course, the powers of Gram Panchayat are subjected to Sections 56 and 80 of the Act,

whereas when it comes to prohibiting certain activities, the Gram Panchayat may do so in any

water-course or part thereof in the interest of public health.

The Court disposed of the writ petition and also directed respondents 1 to 4 to implement the

Fisheries Act and Fisheries Rules framed in G.O. Ms. No. 50 and if they decide to lease out the

fishing rights in any of the creeks, arms, branches, tributaries, or channels of Upputeru/Bonteru

drain, Jaggappa drain, Komatithippa drain,Etimondi, Perlacheruvu, Vedithippa cheruvu, Kothota

Ramalayam cheruvu, Komatithippacheruvu etc to follow the guidelines framed by the

Government of A.P., in G.O. Ms. No. 776, dated 31-12-1990.


Delegated powers are always subjected to restriction imposed by the Government.

20. Obiter Dicta-

On a true construction, it is reasonable to interpret that all water courses like rivers, streams,

irrigation channels, drains vest in the Gram Panchayat under Section 80(1) of the Andhra

Pradesh Panchayat Raj Act 1994. But, if such water-courses are connected with the work of

irrigation, Gram Panchayat has no power over such water bodies.



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STATE OF BIHAR

I. Rohtas Zila Gram Raksha Dal Singh and etc. v. State of Bihar and Ors.

1. State: Bihar

2. Court: High Court Of Patna

3. Bench: Two Judge Bench ( Division Bench)

4. Name of Bench: Ravi S. Dhavan , C.J. and Aftab Alam , J.

5. Case no.: C.W.J.C. Nos. 1983, 2160, 2503, 3015, 3072 and 3525 etc. etc. of 1998 and L.P.A.

No. 895 of 1999

6. Name of the case: Rohtas Zila Gram Raksha Dal Singh and etc. v. State of Bihar and Ors.


8. Appellant: Rohtas Zila Gram Raksha Dal Singh and etc. etc.

9. Respondent: State of Bihar and Ors.

10. Case Type: Writ petition and Letter Patent Appeal

11. Main Law Points involved:

Whether the legal position emerging from the 73rd constitutional amendment, followed by the

coming into force of the Bihar Panchayat Raj Act, 1993 (by which the Bihar Panchayat Raj Act,

1947 was repealed) allowed for appointment of Dalpaties (Head of the village volunteer force)?


Whether the legal position emerging from the 73rd constitutional amendment, followed by the

coming into force of the Bihar Panchayat Raj Act, 1993 (by which the Bihar Panchayat Raj Act,

1947 was repealed) allowed for appointment of Dalpaties (Head of the village volunteer force)?


• Goka Raju Ranga Raju v. State of A.P., AIR 1981 SC 1473

14. Area of Dispute Name: Others

15. Area of Dispute Category: Dispute among Panchayat and between Panchayat and State

Agencies




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Section 26 and Section 32 of the Bihar Panchayat Raj Act, 1993; Rule 4 of the Bihar Panchayat

Raj Village Volunteer Force Rules, 1949; Section 26 and Section 27 of the Bihar and Orissa

Genaral Clauses Act, 1917.

17. Gist of Case:

The petitioners contended that appointment of Dalpaties could still be made after the 73rd

constitutional amendment and the coming into force of the Bihar Panchayat Raj Act, 1993,

atleast, till 24-4-1997 when the Supreme Court by an order passed in a writ petition expressly

stopped from functioning the Gram Panchayats which were supposedly in existence in this State

on the basis of the elections held in the year 1978. Section 26 of the 1947 Act provided that the

appointment of Dalpati had to be made in the ‘prescribed manner’ but clearly stated that the

Executive Committee of the Gram Panchayat shall be the appointing authority for the Dalpati.

The mode of recruitment of Dalpati was prescribed under Rule 4 of the Bihar Panchayat Village

Volunteer Force Rules, 1949 framed under Section 27 of the 1947 Act. A fundamental change in

this regard was brought about by the 73rd Amendment of the Constitution. Following the 73rd

constitutional amendment the Legislature of this State enacted the Bihar Panchayat Raj Act,

1993 (hereinafter referred to as the 1993 Act). Section 151 of the 1993 Act empowered the State

Government to make rules relating to the method of recruitment and the terms and conditions of

service of the employees of the Panchayat.

Section 5 of the Amendment Act, incorporated in the 1993 Act, Section 32-A containing the

provisions regarding Gram Raksha Dal (village volunteer force) and Section 1(2) of the

Amendment Act provided that the introduction of Section 32-A shall be deemed to have come

into force from 23-8-1993, i.e, the date on which the parent Act had come into force. Section

32-A provided for organisation of Gram Raksha Dal. However in this Section there was no

mention of the Executive Committee of the Panchayat as the appointing authority for the

recruitment of Dalpati.

In the light of the orders passed by the High Court, the Commissioner-cum- Secretary Rural

Development Department issued a circular letter, declaring as invalid and illegal all

appointments of Dalpaties made after 23-8-1993 (the date on which the 1993 Act came into

force) and consequently giving the direction to cancel all appointments of Dalpaties made after

that date. It is this circular, dated 9-2-1998 that was challenged in this batch of writ petitions.

18. Operating Portion of the Judgment:



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The Court held that at first glance, the provisions of Section 26 of the 1947 Act and those in

Section 32-A of the 1993 Act appeared very similar. Under both sections, i.e., Section 26 of the

1947 Act and Section 32-A of the 1993 Act, it is provided that the recruitment of Dalpaties will

be made in the manner prescribed (under the Rules). But there was a basic difference between

the old provisions and the provisions currently in force, in that Section 26 of the 1947 Act

clearly specified the Executive Committee of the old Gram Panchayat as the appointing

authority for the recruitment of Dalpaties. Unlike the old provision, under Section 32-A of the

1993 Act, the appointing authority is not identified and consequently the authority competent to

make the appointment was also to be specified in the rules to be framed under the 1993 Act. It

was, therefore, incorrect to submit that there was no inconsistency between the two provisions.

The inconsistency between the two provisions was evident and manifest and hence, the Bihar

Panchayat Raj Village Volunteer Force Rules, 1949 cannot be saved from repeal by virtue of

Section 27 of the Bihar and Orissa General Clauses Act.

The Court held that the circular letter, dated 9-2-1998 was validly and legally issued by the

Government. All the writ petitions and the single L.P.A. were accordingly dismissed


The relevant Section of the Act of 1947 provided that recruitment of Dalpaties would be made in

the manner prescribed under Rules; but there was a basic difference between provisions of the

Act of 1947 and provisions currently in force. Relevant Section of the Act of 1947 clearly

specified Executive Committee of old Gram Panchayat as appointing authority for recruitment of

Dalpaties. According to the relevant Section of Act of 1993, appointing authority was not

identified and consequently the authority competent to make appointment was also to be

specified in Rules to be framed under the Act of 1993.

20. Obiter Dicta:

If Inconsistency between two provisions is evident and manifest, the Rules cannot be saved from

repeal by virtue of relevant Section of General Clauses Act.



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II. Sapru Jayakar Motilal C.R. Das Institute of Legal Aid, Studies and Research and

Ors v. The Union of India (UOI) and Ors.

1. State: Bihar

2. Court: High Court of Patna

3. Bench: Two Judge Bench ( Division Bench)

4. Name of Bench: B.L. Yadav and S.K. Singh, JJ.

5. Case no.: Civil Writ Jurisdiction Case No. 488 of 1995

6. Name of the case: Sapru Jayakar Motilal C.R. Das Institute of Legal Aid, Studies and Research

and Ors v. The Union of India (UOI) and Ors.


8. Appellant: Sapru JayakarMotilal C.R. Das Institute of Legal Aid, Studies and Research

And Ors

9. Respondent: The Union of India (UOI) and Ors.

10. Case Type: Civil Writ Petition


Whether the State Government has the Constitutional obligation in conducting Panchayat

election?


Whether the State Government has the Constitutional obligation in conducting Panchayat

election?


• Mohinder Singh v. Chief Election Commissioner A.I.R. 1978 S.C. 851

14. Area of Dispute Name: Election

15. Area of Dispute Category: Eligibility of Candidates


Section 13,Section 15, Section 32A,Section 33A,Section 137A and Section 157 of the Bihar

Panchayat Raj Act, 1993; Constitution (Amendment) Act, 1992 ;Bihar Panchayat Raj

(Amendment) Act, 1995 ;Rules 26 and Rules 27 of Bihar Panchayat Rules, 1935; Article 226,

Article 227, Article 243O, and Article 326 of the Constitution of India.



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17. Gist of Case:

The State of Bihar was avoiding to hold elections for the last about 18 (Eighteen) years. The

Petitioner sought a relief for issuance of a writ of mandamus directing the Respondents No. 1 to

6 to hold elections to elect persons, at village, Block and District level of the Panchayats in the

State of Bihar, at the earliest. This election was to be held in accordance with the provisions of

Bihar Panchayat Raj Act, 1993 (Act No. 19 of 1993), enacted by the State legislature in the light

of the Constitution (Seventy Third) Amendment Act, 1992.

The Court directed the Respondents to give the date for elections. In compliance of that

direction, a detailed supplementary Counter-Affidavit was filed indicating that voters list,

polling station list will be completed and by the 31st January, 1996 election result would be

declared.

However, the Petitioner contended that the State machinery and the Director of Panchayat and

the State Election Commission would not hold elections on the dates indicated in the

Supplementary Counter-Affidavit. He insisted that his submissions be decided on merits. His

main submission was that Members and Mukhias etc. of the old Panchayats were elected about

eighteen years ago and they completed five years terms much earlier, hence there was no

justification for granting them any extended period of one year or so after five years initial term.

He submitted that Article 243E and Article 243N of the Constitution have to be read conjointly

and Section 157(f) of the Act was unconstitutional. Our country being secular, socialist

democratic republic, basic structure of the Constitution would be jeopardised in case no elections

for Panchayat are held. The Petitioner doubted that there was no definition of elector or voter.

The Act itself was not enforced. The areas of the Panchayats have not been finalised.

18. Operating Portion of the Judgement :

The Court held that as per section 137A of the Act it has been made specific that all such

persons who are enrolled as electors in the electoral rolls or that part of the rolls of the State

Legislative Assembly Constituency for the time being in force which is concerned with the

territorial constituency of any Gram Panchayat shall be the electors for the concerned Panchayat

Elections.

The Court held that it is the Constitutional obligation of the State Government and other

Respondents to hold Panchayat elections in the State in accordance with the Schedule and details

of the election given in the Supplementary Counter Affidavit. Right to Participation is essential



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and by this, the consent is granted in a democracy and the representatives elected are made

accountable to the people who elect them. In view of Article 326 adult suffrage is the basis to

elect representatives by people, who shall govern them in one form or the other.

By issuing a writ of mandamus the Court directed the Respondents particularly the State

Election Commissioner and also the Chief Election Commissioner and other Respondents to

hold the Panchayat Elections in this State positively by 31st January 1996 as given in the

Supplementary Counter-Affidavit. Thus, the Petition was allowed.


It is the Constitutional obligation of the State Government and other Respondents to hold

Panchayat elections in the State in accordance with the Schedule.

20. Obiter Dicta:

The concept of democracy presupposes the representation of the people in Parliament, in State

Assemblies (and also in Panchayats established in every state). Every voter is equal. In a

democracy the Government whether it be Union Government, or of a State or even the

Panchayats, they are representatives of the people, elected directly from the people on the basis

of adult franchise. Right to participate is an essential element of democracy inseparable from

such other attributes of democracy as consent, accountability, majority rule and equality etc.



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III. Smt. Rambha Sinha v. The State of Bihar and Ors

1. State: Bihar



4. Name of Bench: C.K. Prasad , J.

5. Case no.: C.W.J.C. No. 702 of 2002

6. Name of the cases: Smt. Rambha Sinha v. The State of Bihar and Ors.


8. Appellant: Smt. Rambha Sinha

9. Respondent: The State of Bihar and Ors.

10. Case Type: Writ application


a. Whether the no confidence passed against the petitioner was valid?

b. Whether proper notice was issued as per section 44(4) of the Bihar Panchayati Raj Act, 1947?


Whether the no confidence passed against the petitioner was valid? Whether proper notice was

issued as per section 44(4) of the Bihar Panchayati Raj Act, 1947?


• Arun Kumar Singh v. The State of Bihar and Ors., AIR 2004 Pat 24;

• Nagendra Prasad Singh v. The State of Bihar and Ors., 2004 (1) PLJR 531;

• In Re: Railway Sleepers Supply Company, 1885 (2);

• Blunt v. Heslop, 8 Ad and E 577;

• Reg v. Justices of Shorpshire, 8 Ad and E 175;

• In Re: Hector Whaling, Limited, 1936 Chancery Division 208;

• Rex v. Turner, (1910) 1 KB 346;

• Chambers v. Smith, 12 M and W 2;

• RambharoselalGahoi v. State of Madhya Pradesh and Ors.,AIR 1955 Nagpur 35;

• Webb v. Fairmaner, (1834) 3 M and W 473 (C);

• AnokhmalBhurelal v. Chief Panchayat Officer, Rajasthan Jaipur and Ors., AIR 1957 Raj 388;

• Young v. Higgon, (1840) 6 M and W 49;



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• RamkrishnaBahau v. ShrawakKisan, AIR 1944 Nag 356 (K);

• Jai Bhagwan Sharma and Anr. v. Matu Ram Bhola Ram and Ors., AIR 1964 Punj 135;

• Jai Charan Lal Anal v. The State of U.P. and Ors., AIR 1968 SC 5;

• Braj Kishore Singh Ors. v. The State of Bihar and Ors., 1997 (1) PLJ R 509;

• Pioneer Motors Motor Ltd. v. Municipal Council, Nagerciol, AIR 1967 SC 684

14. Area of Dispute: Removal

15. Area of dispute category: No confidence motion.

16. Provisions of Law Involved: Section 44(4) of the Bihar Panchayat Raj Act, 1947

17. Gist of Case:

This application was filed for quashing the notice (Annexure-4) issued by the Executive Officer

of Panchayat Samiti, Katra intimating that the special meeting of the Panchayat Samiti shall be

held on. 7.1.2002 to consider the motion of no confidence brought against the Pramukh. By way

of amendment prayer of the petitioner was to quash another notice (Annexure-9) issued by the

Executive Officer dated 4.2.2002 conveying that the special meeting of the Panchayat Samiti

shall be held on 11.2.2002 to consider the motion of no confidence against the Pramukh. The

Petitioner had also prayed for quashing of the resolution dated 11.2.2002 whereby the motion of

no confidence has been carried out against her.

The petitioner was elected as the Pramukh of the Panchayat Samiti, Katra and a requisition

(Annexure-1) to convene a special meeting of the Panchayat Samiti was given to her to consider

the no confidence motion. Petitioner by order dated 29.12.2001 (Annexure-2) rejected the said

prayer, inter alia, on the ground that out of 30 members 18 have shown their confidence in her.

Ultimately the Executive Officer of the Panchayat Samiti gave notice intimating to the members

that special meeting of the Panchayat Samiti shall be held on 7.1.2002 to consider the no

confidence motion brought against the petitioner. The meeting as scheduled was held and 15

members voted in favour of the motion and the proceeding indicated that the motion was carried

out against the petitioner.

During the pendency of the writ application, fresh election to the office of the Pramukh was held

and by order dated 5.6.2002, the same was made subject to the final decision of the present writ

application.

The Petitioner submitted that that notice of the meeting held on 11.2.2002 in which motion of no

confidence has been carried out against the petitioner was sent on 4.2.2002 and as such, the same



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does not conform to the requirement of Section 44(4) of the Bihar Panchayat Raj Act

(hereinafter referred to as the Act). He submitted that Section 44 (4) of the Act contemplates

seven clear days notices for holding the special meeting, which would obviously mean that the

date on which the notice is sent and the date on which the meeting is held have to be excluded

for calculating the number of days. The Respondent however, submitted that in case the

provisions of Section 44(3) and (4) of the Act are read together and principles of harmonious

construction applied, one of the two days. i.e. the day on which the notice was sent or the day on

which meeting was held, has to be excluded. It is common ground that in case one of the days is

excluded the notice conforms to the requirement of Section 44 (4) of the Act, otherwise not.


The Court said that as per provision of Section 44(4), the legislature has used the words seven

clear days notice and from that its intention was clear that the day on which the notice is sent and

the day on which the meeting is held, have to be excluded for computing seven clear days. The

Court held that seven clear days notice for the special meeting was not given and the said

provision being mandatory in nature, the motion of no confidence was illegal.

With respect to the election held during the pendency of the case the Court held that it was

subject to final decision and as such the petitioner cannot be shown the door on the ground that

in the mean while respondent No. 6 has been elected as Pramukh. In this case petitioner was not

directly challenging the election of respondent No. 6 as Pramukh of the Panchayat Samiti. She

was aggrieved by her removal on account of the motion of no confidence having been carried

out against her. No remedy has been provided under the Act to question the validity of the no

confidence motion. The Court held that it shall have jurisdiction to go into the legality or

otherwise of the motion of no confidence and in case it was found to be illegal, the election of a

person on account of the vacancy created by no confidence motion would be a matter which

would be consequential to the decision on the question of validity of the no confidence motion.

The validity of the motion of no confidence passed against a person cannot be gone into in an

election petition contemplated under Section 140 of the Act and in case it was held that election

of a person to a seat becoming vacant on account of passing of the no confidence motion cannot

be gone into in a writ petition, virtually a person suffering an illegal motion of no confidence

shall be remediless. The effect on the office of the Pramukh as a result of a person getting

elected because of the vacancy occurring on account of the no confidence motion was



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consequential in nature and, therefore, the writ application was not fit to be dismissed on this

ground.

The Court held that due to the peculiarity of the case the petitioner shall not be reinducted as the

Pramukh till a fresh decision on the no confidence motion. The Court directed the Executive

Officer to issue a notice of the special meeting of the Panchayat Samiti giving seven clear days

notice within two weeks from the date of receipt of a copy of this judgment to consider the no

confidence motion against the petitioner and in case the same is defeated, respondent No. 6 shall

vacate the office and petitioner shall continue to function as the Pramukh of the Panchayat

Samiti. However, in case the motion is carried out by required majority, respondent No. 6 shall

continue as the Pramukh.

Thus , the writ application was allowed.


If seven clear days notice for the special meeting is not given, it constitutes a violation of a

mandatory provision and such motion of no confidence has to be considered illegal.

20. Obiter Dicta:

If no remedy has been provided under the Act to question the validity of the no confidence

motion, the Court shall have jurisdiction to go into the legality or otherwise of the motion of no

confidence and in case it is found to be illegal, the election of a person on account of the vacancy

created by no confidence motion would be a matter which would be consequential to the

decision on the question of validity of the no confidence motion.



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IV. Suryadeo Kumar, son of late Gyan Yadav and Ors v. The State of Bihar through the

Secretary, Department of Panchayati Raj and Ors And Pinki Kumari, wife of Sri Prem

Sadan Kumar v. The State of Bihar through the Chief Secretary, Government of Bihar

and Ors.

1. State: Bihar



4. Name of Bench: Ramesh Kumar Datta , J.

5. Case no.: CWJC Nos. 11518 and 12005 of 2008

6. Name of the cases: Suryadeo Kumar, son of late GyanYadav and Ors v. The State of Bihar

through the Secretary, Department of Panchayati Raj and Ors and PinkiKumari, wife of Sri Prem

Sadan Kumar v. The State of Bihar through the Chief Secretary, Government of Bihar and Ors.

7. Date of Judgment: 27.11.2008

8. Appellant: Suryadeo Kumar, son of late GyanYadav and Ors; PinkiKumari, wife of Sri Prem

Sadan Kumar

9. Respondent: The State of Bihar through the Chief Secretary, Government of Bihar and Ors.

10. Case Type: Writ Applications


• Whether the District Magistrate had power under Section 157 of the Bihar Panchayat Raj Act,

2006 to stay the decision of the Panchayat Samiti on issue of no confidence motion?

• Whether elected members have only right to vote in a Special meeting to consider no confidence

motion?


Whether the District Magistrate had power under Section 157 of the Bihar Panchayat Raj Act,

2006 to stay the decision of the Panchayat Samiti on issue of no confidence motion? Whether

elected members have only right to vote in a Special meeting to consider no confidence motion?


• Rajendra Mehta v. The State of Bihar and Ors. 2005 (3) PLJR 439;

• Ramesh Mehta v. Sanwal Chand Singhvi and Ors. AIR 2004 S.C. 2258;

• Knowles v. Zoological Society of London (1959) 1 WLR 823;



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• State of Karnataka v. Union of India and Anr. AIR 1978 SC 68


15. Area of Dispute Category: Postponement/Re-election

16. Provisions of Law Involved

Section 36, Section 38, Section 44, Section 44(3), Section 46(4) and Section 157 of the Bihar

Panchayat Raj Act, 2006;

17. Gist of Case:

Both the writ applications pertain to the same set of transactions in relation to No Confidence

Motion against the Pramukh of Panchayat Samiti passed in special meeting dated 14.7.2008.

The writ petitioners (elected members of the Panchayat Samiti) in C.W.J.C. No.11518/2008 seek

quashing of the direction of the District Magistrate to the Block Development Officer-cum-

Executive Officer staying the decision of the Chanan Panchayat Samiti dated 14.7.2008, by

which No Confidence Motion against the Pramukh had been passed and further to hold that the

decision of the said Panchayat Samiti dated 14.7.2008 is legal and for consequential reliefs.

The petitioner in C.W.J.C. No. 12005/2008 was the Pramukh of the said Panchayat Samiti and

seeks quashing of letter issued by the Block Development Officer-cum-Executive Officer,

Chanan Panchayat Samiti, by which notices have been issued upon the petitioner and other

directly elected members of the Panchayat Samiti for holding the special meeting to discuss the

No Confidence motion against the petitioner on 14.7.2008, and further for not giving effect to

the decision taken on 14.7.2008 in the said special meeting pursuant to the said notice and also

for quashing the part of the order issued by the District Magistrate by which direction had been

given to the Block Development Officer-cum-Executive Officer to see that the next date was

fixed for special meeting on point of No Confidence Motion against the petitioner and for

consequential reliefs.


The Court held that once the Panchayat Samiti in a special meeting has already acted or arrived

at a particular decision, no person or other machinery has been provided under the Act to

overturn its decision. In this regard, any person aggrieved by what has transpired in the course of

the special meeting and the decision taken therein can at best approach the Court in its writ

jurisdiction. The power of the District Magistrate to depute an officer to be present and call for a

report can only be of assistance in the matter of arriving at a correct conclusion as to whether the



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special meeting has been conducted in accordance with law or not. However, the same cannot

confer any power upon the District Magistrate to countermand the decision taken by the elected

members of the Panchayat Samiti, when the statute itself does not expressly authorize him to do

so. Therefore the District Magistrate had no power to pass any order under Section 157 of the

Act with respect to a final and concluded resolution passed at a special meeting with regard to

No confidence Motion. The letter dated 20.7.2008 staying and countermanding the decision of

the Chanan Panchayat Samiti dated 14.7.2008 was declared contrary to law and was set aside.

The Court held that the petitioner had failed to act within the 7 days permitted by statute when

the requisition was first served upon her and which she had read, according to the report of the

Peon on 20.6.2008 itself. Even assuming that she had received the notice on 27.6.2008 then she

ought to have fixed a proper date for the meeting in terms of the statutory requirement by 4th

July, 2008. Having failed to do so till that date, probably with a view to defeat the decision taken

at the said meeting by not fixing a date complying with the requirement of seven clear days

notice, it was for the Up-Pramukh or one third of the total number of directly elected members to

act in the matter by fixing a date of the special meeting for considering no confidence motion

against the Pramukh. The Court said that the Executive Officer had rightly approached the Up-

Pramukh for fixing the date of the meeting and accordingly no fault can be found with the said

meeting, which was fixed on 14.7.2008. As a matter of fact, this Court held that it was gross

impropriety committed by the Pramukh in refusing to receive the requisition at the first instance

and thereafter she acted contrary to law by fixing the date of the special meeting for considering

no confidence motion against her without providing for clear seven days notice. In such

circumstances the District Magistrate, and others, have seriously erred in treating her as the

wronged party.

The Court also held that in a special meeting to consider No Confidence Motion, the

participation of only elected members of the Panchayat Samiti is required who alone have the

right to vote in such a meeting. The mere statement in Sub clause (vii) of Section 44(3) of the

Act that the Pramukh or the Up-Pramukh should be given an opportunity for his defence before

the Panchayat Samiti cannot be taken to mean that even the ex-officio members of the Panchayat

Samiti have to be present during such special meeting, since Section 36 of the Act, which

provides for the composition of the Panchayat Samiti including certain ex-officio members

clearly provides that in case of election and removal of Pramukh and Up-Pramukh only the



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directly elected members from the Panchayat Samiti territorial constituencies shall have the right

to vote.

The C.W.J.C. No. 11518/2008 was accordingly, allowed and C.W.J.C. No. 12005/2008 was

dismissed.


The District Magistrate had no power to pass any order under Section 157 of the Act with

respect to a final and concluded resolution passed at a special meeting with regard to No

confidence Motion. In a special meeting to consider No Confidence Motion, the participation of

only elected members of the Panchayat Samiti is required who alone have the right to vote in

such a meeting.

20. Obiter Dicta:

Once the Panchayat Samiti in a special meeting has already acted or arrived at a particular

decision, no person or other machinery has been provided under the Act to overturn its decision.



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V. Vijay Kapari Son of Late Sant Lal Kapri v. The State of Bihar and Ors.

1. State: Bihar



4. Name of Bench: Ramesh Kumar Datta , J.

5. Case no.: CWJC No. 9830 of 2006

6. Name of the cases: Vijay Kapari Son of Late Sant Lal Kapri v. The State of Bihar and Ors.


8. Appellant: Vijay Kapari Son of Late Sant Lal Kapri


10. Case Type: Writ Application


• Whether the election of Respondent no.5 as Pramukh of Panchayat Samiti was valid?

• Whether the rejection of votes was valid?


Whether the election of Respondent no.5 as Pramukh of Panchayat Samiti was valid? Whether

the rejection of votes was valid?

13. Reference taken from the case: Nil




Section 40(4), Section 137 of the Bihar Panchayat Raj Act, 2006 ; Rules 95 and Rules 96 of the

Bihar Panchayat Election Rules, 2006; Article 226 of the Constitution of India

17. Gist of Case:

The petitioner was aggrieved by the order passed by the State Election Commission by which he

had refused to entertain the petition filed before him for declaring the election of respondent No.

5, Pramukh of Sangrampur Panchayat Samiti null and void, on the ground that he had no

jurisdiction in the matter and the remedy was by filing an election petition before the competent

Subordinate Judge. The further prayer of the petitioner was to declare the election of respondent

No. 5 as Pramukh of the Sangrampu Panchayat Samiti null and void and further to declare the



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petitioner as elected Pramukh of the said Panchayat Samiti. The main contention of the

Petitioner was that out of 13 members only six members cast their votes in favour of respondent

No. 5 whereas seven members cast their vote in favour of the petitioner; however, the vote of

one of the members was declared by the SDO as invalid on the ground that the cross mark (X)

by the said member was put adjoining to the name of the petitioner and it was not put in the

column after the oblique line in front of the name of the petitioner where it is normally supposed

to be recorded. Thereafter since there was equality of votes between the petitioner and

respondent No. 5, the matter was determined by the draw of lot and here the allegation of the

petitioner was that the lottery process was adopted surreptitiously and the name of the petitioner

was not shown in the lottery and cunningly the SDO asked the henchman of respondent No. 5 to

pick up the lottery paper who picked it and without showing the same, the SDO declared the

respondent No. 5 elected as Pramukh although request in this regard was made. It was submitted

that Rule 96 of the Bihar Panchayat Election Rules, 2006 lays down five grounds on which a

ballot paper shall be treated as invalid. It was submitted that none of those grounds apply in this

case. The grounds mentioned in Clause (c) of Rule 96 states that the ballot paper shall be

considered as invalid if the mark has been made in such a manner that it cannot be ascertained as

to which candidate the vote has been cast. It was contended that from the ballot paper in question

it was evident that the mark has been made against the name of petitioner though not in the exact

place where it should have been put but it could not be said from the manner in which the mark

has been made that it could not be ascertained as to for which candidate the vote had been cast.


With respect to the issue of forum for consideration of election dispute relating to the office of

Pramukh was concerned, the Court said that in view of the specific provisions with respect to

determination of election dispute to the office of Pramukh and Up-Pramukh made by Sub-

section (4) of Section 40, by providing for framing of rules in that regard by the State Election

Commission, it was evident that such disputes are not to be determined in accordance with the

provisions of Section 137 of the Act and the same would evidently not lie before the Sub Judge

concerned. In the said circumstances, since no statutory rules was framed, the aggrieved party

would be left with no remedy at all and, therefore, it would be permissible to invoke the writ

jurisdiction of the High Court under Article 226 of the Constitution.



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Further the Court held that the grounds on which the ballot paper can be treated as invalid are to

be found only under Rule 96 and the Election Officer while exercising his jurisdiction to declare

the ballot paper invalid, has to see whether it comes under any of the clauses of Rule 96; if not

so covered, he has no option but to consider the said vote as a valid one.

In this case the respondents have not been able to show that there was any application of Clauses

(a) to (e) since it was admitted that a cross mark (X) was made on the ballot paper and the only

ground for rejection is that the same was not made in the exact column prescribed against the

name of the petitioner rather it had been made adjacent to the name of the petitioner. That being

the admitted position even the application of Clause (c) of Rule 96 will not come into play as the

said clause applies only where it cannot be ascertained from the manner in which the mark has

been made as to for which candidate the vote has been cast.

In this case, there was no dispute that the mark has been made in the block of column in which

the name of the petitioner appears and no part of the said mark was made against the name of

respondent No. 5. There being thus no question of any doubt as to in whose favour the member

had intended to cast his vote, it should not have been rejected.

The Court held that SDO-cum Election Officer had seriously erred in declaring the vote cast by

the thirteenth member as invalid. The said vote was held to have been validly cast in favour of

the petitioner. That being the position, seven votes would be considered as having been cast in

favour of the petitioner as against only six votes in favour of the respondent No. 5. In the said

circumstances, there would be no occasion for the draw of lot to determine the elected candidate

and therefore the subsequent draw of lot made after the counting process was also held to be

illegal and invalid. The Writ petition was allowed and the election of respondent No.5 was

declared to be invalid and the petitioner was declared as the validly elected candidate.

19. Ratio Decidendi :

In view of the specific provisions with respect to determination of election dispute to the office

of Pramukh and Up-Pramukh made by Sub-section (4) of Section 40, by providing for framing

of rules in that regard by the State Election Commission, it is evident that such disputes are not

to be determined in accordance with the provisions of Section 137 of the Act and the same

would evidently not lie before the Sub Judge concerned. Also, the grounds on which the ballot

paper can be treated as invalid are to be found only under Rule 96 and the Election Officer while

exercising his jurisdiction to declare the ballot paper invalid, has to see whether it comes under



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any of the clauses of Rule 96; if not so covered, he has no option but to consider the said vote as

a valid one.

20. Obiter Dicta:

---



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VI. Akchay Kumar Mandal v. The State of Bihar and Ors.

1. State: Bihar



4. Name of Bench: Jyoti Saran, J.


6. Name of the case: Akchay Kumar Mandal v. The State of Bihar and Ors.


8. Appellant: Akchay Kumar Mandal




• Whether the removal of Mukhiya of Gram Panchayat was valid?

• Whether in absence of any allegation regarding misappropriation of public fund against the

Mukhiya, any such lapse would be treated as misconduct or a casual aberration?


Whether the removal of Mukhiya of Gram Panchayat was valid? Whether in absence of any

allegation regarding misappropriation of public fund against the Mukhiya, any such lapse would

be treated as misconduct or a casual aberration?

13. Reference taken from the Case:

• Ravi Yashwant Bhoir v. District Collector, Raigad and Ors (2012)4 SCC 407;

• Bindeshwar Prasad Son of Late BhagwanSah vs. The State of Bihar and Ors 2010(4) PLJR 314;

• Pancha Devi vs. The State of Bihar through the Chief Secretary and Ors. 2014 (2) PLJR 200;

• TarlochanDev Sharma vs. State of Punjab &Ors. (2001)6 SCC 260

14. Area of Dispute Name: Removal and No Confidence Motion

15. Area of Dispute Category: Suspension of Sarpanch and Other Members

16. Provisions of law Involved: Section 18(5) of Bihar Panchayat Raj Act.

17. Gist of Case:

The petitioner was elected as a Mukhiya of the Gram Panchayat. A complaint was filed charging

the petitioner with financial irregularities in the purchase of solar lights and which also led to



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institution of a criminal complaint. While the criminal case was pending for consideration before

the criminal court, the authorities of the Panchayati Raj Department removed the petitioner

under Section 18(5) of Bihar Panchayat Raj Act.

The Petitioner admitted to the lapse committed by the petitioner in not going for open tender.

However, he submitted that the Petitioner had no technical know-how or procedure required to

be followed nor he was given any such information by the Executive Officer-cum-Block

Development Officer who is expected to provide guidance in matters involving financial

responsibilities. It was submitted that the Mukhiya invited quotations from different suppliers

and of the three quotations received, he found the quotation given by one M/s.Akshay

Enterprises as most suitable hence the matter was placed before the Gram Sabha who gave its

approval and whereafter an agreement was entered with the supplier in question with due

intimation to the Executive Officer-cum-Block Development Officer and further the Executive

Officer-cum-Block Development Officer granted administrative approval to the decision taken

by the petitioner and thus there was no occasion for the petitioner to doubt his decision. He

further submitted that if there were guidelines as to the manner in which such purchase is to be

made then the same should have been duly intimated by the Executive Officer who gave no such

intimation rather while granting administrative approval to the purchase he had clearly

mentioned that it was in terms with the Government circular and guidelines. He thus submitted

that in such circumstances and in absence of any allegation against the petitioner of

misappropriation of Government fund, a mere procedural lapse could not be sufficient for

removal of an elected representative under Section 18(5) of “the Act”.

On the other hand Respondent submitted that once the petitioner had admitted to the lapse it

amounted to misconduct and he cannot thereafter question his removal.

This writ petition was directed against the order dated 23.5.2014 bearing Memo No. 3548 dated

23.5.2014, whereby the petitioner has been removed from the post of Mukhiya, Gram Panchayat

Raj, Mohanpur, Block-Goradih, District-Bhagalpur by the Principal Secretary, Panchayati Raj

Department in exercise of powers vested under Section 18(5) of the Bihar Panchayat Raj Act,

2006 (hereinafter referred to as “the Act”) and the Rules framed there under..


After examining the FIR and the Complaint, the Court observed that in the FIR the Block

Development Officer had merely charged the petitioner with irregularities in purchase of solar



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lights and while making such allegation, the petitioner had been sweepingly charged with loot

and of committing fraud. On the face of the record it did not reflect that the purchase procedure

was by itself reflective of misappropriation of fund by the petitioner or there were materials

which supported such charge. On the contrary the impugned order completely rested on the fact

that the petitioner did not observe the Government guidelines.

The Court held that the petitioner as per his prudence had obtained quotation from different

suppliers and since the supplier in question was found to be the lowest, he placed the quotation

before the Gram Sabha who approved of the same. According to the petitioner, it was a fair

procedure adopted by him and which not only was approved by the Gram Sabha but was also

granted administrative approval by the Executive Officer-cum-Block Development Officer. In

such circumstance, it cannot be held that the decision taken by the petitioner as regards the

purchase of solar lights would amount to willful abuse of power or intentional wrong. The fact

that the guidelines issued in this regard were never brought to the notice of the petitioner rather

his decision was accepted without any objection would only vindicate his stand. In these

circumstances, and in absence of any material reflecting misappropriation by the petitioner or

that his act was motivated for securing unjust gains or to grant undue benefit to an individual,

this single act of aberration is not sufficient for his removal.

The Court allowed the writ petition and set aside the order passed by the Special Secretary,

Panchayati Raj Department and as a consequence the petitioner was restored to the post of

Mukhiya, Gram Panchayat Raj, Mohanpur, District-Bhagalpur.


In the absence of any material reflecting misappropriation by the petitioner or that his act was

motivated for securing unjust gains or to grant undue benefit to an individual, the single act of

aberration is not sufficient for removal .

20. Obiter Dicta:

Merely not to conduct oneself according to the procedure prescribed or omission to conduct a

meeting without any corresponding loss to the corporate body, would not be an automatic

misconduct by inference, unless some positive intention of misconduct is shown. Thus in the

absence of any imputation of motive, individual could not be held liable for charges.



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VII. Banwari Yadav v. The State of Bihar

1. State: Bihar



4. Name of Bench: Navin Sinha, J.


6. Name of the case: Banwari Yadav v. The State of Bihar


8. Appellant: BanwariYadav

9. Respondent: The State of Bihar



Whether the recount of ballots was a serious matter affecting the sanctity of the election process?

12. Grounds of Challenge: Whether the recount of ballots was a serious matter affecting the

sanctity of the election process?


• Chandrika Prasad Yadav vs. State of Bihar and Ors. 2004(6) SCC 331;

• Directorate of Enforcement vs. Deepak Mahajan and another AIR 1994SC 1775;

• Padmasundara Rao and Ors. vs. State of Tamil Nadu and Ors.AIR 2002 SC 1334;

• VirenderNathGautam vs. Satpal Singh and Ors. (2007) 3 SCC 617;

• Smt. Ram Rati vs. Saroj Devi and others (1997) 6 SCC 66;

• M. Chinnasamy vs. K.C. Palanisamy and Ors. 2004(6) SCC 341;

• Dr. Jagjit Singh vs. GianiKartar Singh and Ors. AIR 1966 SC 773;

• Baldev Singh vs. Shinder Pal Singh and Anr.,(2007) 1SCC 341

14. Area of Dispute Name: Removal and No confidence Motion

15. Area Of Dispute Category: Suspension of Sarpanch and Other Members

16. Provisions of law Involved:

Section 137, Section 139 and Section 140(1)(a) and of the BiharPanchayat Raj Act; Rule 79,

Rule 80 and Rule 106 of Bihar Panchayat Election Rules; Section 102 of the Representation of

Peoples Act.



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17. Gist of Case:

The petitioner successfully contested for the post of Mukhiya from Gram Panchayat, Raj

Haradiya, under the Bhore Block, District Gopalganj. The rival candidate, respondent no. 7,

questioned his election in Election Petition No. 8 of 2006, under Section 137 of the Bihar

Panchayat Raj Act (hereinafter referred to as ‘the Act’) before the Munsif, Gopalganj. The relief

sought was for recount of ballots and thereafter set aside the election of the petitioner and

declare the plaintiff/respondent no. 7 as having been elected. By order dated 30.4.2007 the Court

held that it was prima facie satisfied that a case had been made out for calling the ballot papers

and recounting of votes. The consequential orders dated 6.6.2007 and 17.7.2007 came to be

passed after recount on an equality of votes that the petitioner and respondent no. 7 had secured

906 votes each and 253 ballots were found invalid from the total of 3409 ballots counted when

respondent no. 7 was declared elected as the Mukhiya and the petitioner was unseated. I.A. No.

3487 of 2007 was then filed assailing the orders dated 6.6.2007 and 17.7.2007.

The Petitioner submitted that the Election Petition was incompetent and lacking in allegations of

material facts with regard to illegality during counting and did not disclose how the result was

materially affected. There was no provision for a draw of lots by lottery in an election petition

under Section 137 of the Bihar Panchayati Raj Act, 1993 (hereinafter Act) read with Rule 106 of

Bihar Panchayat Election Rules (hereinafter Rules), if on recount there was equality of votes.

Rule 80 dealing with draw of lots was available only at the time of counting of the votes before

the Election Officer. The powers of the Election Court are limited to examining the grounds in

Section 139 of the Act for declaration of invalidity. There is no provision under the Act or Rules

for recount in an election petition as provided for in Section 102 of the Representation of

Peoples Act. The legislature in its wisdom having not done so, the Court was required to

interpret the law as it stood.

The respondent no. 7 submitted that the present controversy related to recounting of votes for

which the determining provision was Section 140 of the Act as distinct from Section 139, which

deals with the issue of disqualification to set aside an election. The words “in fact” in Section

140(1)(a) was wide enough to take within its fold the issue of recounting during the suit, the

drawing of a lottery in case of a tie during such recounting to arrive at the determination as to

who had received the majority votes. Rule 80 of the Rules was procedural and substantive in

nature. The exclusion of the rule to an election petition will lead to absurd results. To throw out



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the petition in such situation was not the legislative intent. The drawing of lots in case of a tie

was an accepted mode in all spheres of life. In the suit there was no prayer for declaration that

the election was void under section 139 of the Act.


The Court held that there was no compliance with Rule 79 by the plaintiff/respondent no. 7 and

therefore there never was an application by him for recount during counting on grounds of

alleged irregularities. This finding was further fortified by the pleadings in the election petition

which were completely at variance and did not support the availability of such grounds at the

time of recount. The pleadings in the election petition were completely lacking in material

particulars nor disclosing a prima facie case to order a recount. The order of the learned Munsif

was more in the nature of a fishing enquiry to arrive at a conclusion for recount. Even while

considering the salutary principles to order recount, the learned Munsif has still glossed over the

legal necessity for the same and appears to have been swayed by his own conclusions of undue

influence by the petitioner upon Government Officials and the willingness of the parties by

consent to go for a recount.

The Court held that the election plaint was vague when it stated that the valid votes of the

plaintiff/respondent no. 7, were declared invalid and the invalid votes of the petitioner were

declared valid. There are no details of the same. If the pleading with regard to the 12 votes given

to the petitioner illegally be also taken into consideration, the plaintiff/respondent no. 7, lost by

15 votes. Yet 3 votes remained available to the petitioner making him the winning candidate.

There were no more material facts with regard to the nature of illegality during counting to

disclose a cause of action.

Thus the impugned order and the consequential orders in Election Petition were accordingly set

aside. The petitioner was reinstated to his winning position. The writ application was allowed.


The election plaint was vague when it stated that the valid votes of the plaintiff were declared

invalid and the invalid votes of the petitioner were declared valid. There are no details of the

same. Unless there are material facts with regard to the nature of an illegality as alleged in the

counting of votes, no cause of action would arise.

20. Obiter Dicta:



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The right to challenge an election is not a fundamental, constitutional or common-law right. It is

a legal right regulated by the law, the Bihar Panchayat Raj Act and the Rules. Section 137

provides for institution of an election petition and the necessary parties to the petition. Section

139 provides the ground for declaring an election to be void in such a suit. Section 140 vests the

election courts with the power to decide who received the majority of valid votes when a person

not only challenges the Returned Candidate but claims a declaration in favour of him. Section

146 vests the power in the Government to make Rules under which the Bihar Panchayat Election

Rules, 2006 have been framed. Rule 79 provides for recounting of votes on an application made

to the Election Officer in writing specifying the grounds for the same. It does not limit such

application to the period of counting but even thereafter.



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VIII. District Magistrate-cum-District Election Officer and Anr. v. Satyendra Kumar and

Ors.

1. State: Bihar



4. Name of Bench: Ajay Kumar Tripathi, J.


6. Name of the Case: District Magistrate-cum-District Election Officer and Anr. v. Satyendra

Kumar and Ors.


8. Appellant: District Magistrate-cum-District Election Officer and Anr.

9. Respondent: Satyendra Kumar and Ors.



Whether order passed by the Election Tribunal imposing costs to Petitioners was valid or not?


Whether order by passed the Election Tribunal imposing costs to Petitioners was valid or not?


• JaganNath v. Jaswant Singh and Ors AIR 1954 SC 210;

• JyotiBasu and Ors. v. Debi Ghosal and Ors. AIR 1982SC 983;

• N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. AIR 1952 SC 64

14. Area of Dispute: Election

15. Area of Dispute Category: Eligibility of Candidate

16. Provisions of Law Involved: Bihar Panchayat Election Rules, 2006; Bihar Panchayati Raj Act,

2006

17. Gist of Case:

One Satyendra Kumar, Respondent-1st set instituted Election Petition No. 1 of 2006 before the

Court of Sub-Judge-VII, Biharsharif at Nalanda. His grievance was that he was a successful

candidate for Biharsharif East in the election conducted for Zila Parishad Member. However, by

certain manipulation and mischief caused by the officials involved with the election process, one



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Manju Devi was illegally declared as returned candidate. After a detailed hearing of the election

petition and based on the evidence which emerged, the election petition was allowed in favour of

the petitioner of the election petition. However, while deciding issue No. 5, the Presiding Officer

saddled responsibility upon the officials conducting the election for having caused loss to the

petitioner and awarded compensation of Rs. 50,000/-. This was over and above the cost of the

election petition etc

The present Writ Application was filed against the judgment/order dated 7.5.2007, passed by the

Court of Sub-Judge-VII, acting as Election Tribunal, Biharsharif at Nalanda in Election Petition

No. 1 of 2006, by virtue of which, while allowing the election petition, a cost of Rs. 50,000/-

(fifty thousand) was imposed on these petitioners as compensation to the petitioner of the

election petition, for the harassment caused to him. The stand of the petitioners was that the

Election Tribunal had no authority or power to award such compensation against the officials,

while acting as a Presiding Officer of the Election Tribunal under the Bihar Gram Panchayat

Act, 2006.


The Court held that the power which the Election Tribunal is required to exercise is straight

jacketed and it can never have the attributes of a Court, where certain relief over and above what

can be provided for can be granted. The petitioners had prima facie made out a case for

interfering with that part of the declaration made in the election petition which had imposed cost

by way of compensation upon two petitioners. The Court said that no doubt, the protracted

litigation which the said respondent had to undergo to succeed and claim his rightful place of

being called the returned candidate cannot be disputed but when it comes down to imposing a

compensatory amount of 50,000/- over and above the cost of the election petition, it is a

transgression of powers by the Tribunal which cannot be justified.

The Court quashed the judgment and order passed by the Court of Sub Judge-VII-cum-Election

Tribunal to the extent of award of compensation of 50,000/- against the petitioners or such

officials.


The power which the Election Tribunal is required to exercise is not straight jacketed and it can

never have the attributes of a Court.



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20. Obiter Dicta:

An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding

to which neither the common law nor the principles of equity apply but only those rules which

the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to

be exercised in accordance with the statute creating it. Concepts familiar to Common Law and

Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right

to resort to them on considerations of alleged policy because policy in such matters, as those,

relating to the trial of election disputes, is what the statute lays down. In the trial of election

disputes, Court is put in a straight jacket.



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IX. Hiralal Mandal v. State of Bihar

1. State: Bihar



4. Name of Bench: V.N. Sinha , J.


6. Name of the cases: Hiralal Mandal v. State of Bihar


8. Appellant: Hiralal Mandal

9. Respondent: State of Bihar



Whether the removal of the petitioner was in accordance with the Bihar Panchayati Raj Act,

1993?

12. Grounds of Challenge: If the removal of the petitioner was in accordance with the Bihar

Panchayati Raj Act, 1993?


• Uday Shankar Singh v. The State of Bihar and Ors., 2003 (2) PLJR 123;

• Sanjay Singh Som v. The State of Bihar and Ors., 2002 (3) PLJR 589;

• BrijNandan Sharma v. The State of Bihar, 2004 (2) PLJR 244;

• Ramesh Mehta v. Sanwal Chand Singhvi and Ors., AIR 2004 SC 2258

14. Area of Dispute: Removal

15. Area of dispute category: No confidence motion.


Section 2, Section 2(1), Section 34(2), Section 42(3), Section 42(7), Section 44(3), Section 44(7)

and Section 68 of the Bihar Panchayati Raj Act, 1993; Article 2438 of the Constitution of India;

Rajasthan Municipalities Act, 1959.

17. Gist of Case:

The petitioner was removed from the post of Pramukh of Chandan Panchayat Samiti by serving

a requisition which was signed by 10 elected members of Panchayat Samiti. The Petitioner



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submitted that the requisition was signed by only 10 elected Members of the Panchayat Samiti

which was violative of Subsection (3) of Section 44 of the Bihar Panchayati Raj Act, 1993

(hereinafter referred to as ‘the Act’) which required at least 1/3rd of the total number of the

Members of the Panchayat Samiti to requisition a special meeting of the Panchayat Samiti to

consider the removal of the Pramukh. He had further assailed the said requisition on the ground

that the same was violative of Sub-section (7) of Section 42 of the Act as the requisition did not

contain the specific charges which had been alleged, against him. He had questioned the

Resolution dated 18.12.2003, Annexure-4 on the ground that the same was violative of Sub-

section (3) of Section 42 of the Act whereunder Pramukh could be removed from the office on

the basis of a motion of no confidence having been carried by a majority of total number of

elected Members of the Panchayat Samiti and in the present case motion of no confidence was

carried by majority of 10 votes in a house of 20 elected members, hence the motion was not

carried by a majority as majority constituted of 11 Members.

It was further submitted that the Annexure-2 signed by only 10 elected members did not

constitute 1/3rd of the total number of the Membership of the Panchayat Samiti which had a total

strength of 41 Members out of which 21 are ex-officio Members with no voting power.

The Respondent submitted that as per the provisions contained in Sections 2 (1) and 2 (r) and

Sub-section (2) of Section 34 of the Act, which, inter alia, define the term Member of the

Panchayat, and provide that only elected members are authorised to consider the motion of no

confidence against Pramukh. ‘Member of the Panchayat’ means an elected member of that

Panchayat. Laying emphasis on the aforesaid three provisions the respondents submitted that in a

special meeting to consider the removal of Pramukh from his office, only elected members are

entitled to vote, the requisition calling for such a special meeting should be signed by 1/3rd of

the total number of elected members and in this case, half of the elected members have signed

the requisition Annexure-2 on the basis of which the Pramukh had been removed. In this

connection, they relied on the judgment of the Hon'ble Supreme Court inthe case of Ramesh

Mehta v. Sanwal Chand Singhvi and Ors., AIR 2004 SC 2258 in which their Lordships of the

Hon'ble Supreme Court, with reference to the Rajasthan Municipalities Act, 1959 as amended in

1994 held that the expression whole number of members shall include only elected members and

not the nominated ex-officio Members.

Hence the writ application was filed challenging the said requisition.



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The Court held that it was only the elected Members of the Panchayat Samiti who were

authorised to vote on a motion of no confidence against the Pramukh/Up-Pramukh. In this case,

the requisition, Annexure-2 was signed by 10 of the elected members and also contained the

details of allegation set out against the petitioner, the requisition, Annexure-2 was in accordance

with law and there was no infirmity in the same. With regard to the submission that the

petitioner was removed from his office only on the basis of 10 votes which is not a majority out

of 20 is concerned, the Court held that the situation was entirely of the making of the petitioner

as he purposely walked out from the Meeting Hall and thereby allowed the situation to drift to

this pass. The Court said that had he participated in the voting then in the case of a tie of 10

votes the Chairman who presided over the meeting on 18.12.2003 ought to have given his

casting vote and then the motion would have been carried by 11 votes which is the majority of

the total of the 20 elected members. Therefore the Petitioner should not be allowed to take

advantage of his own mischief of not participating in the voting held during the meeting dated

18.12.2003.

Hence the writ application was dismissed.


The Petitioner should not be allowed to take advantage of his own mischief of not participating

in the voting held during the meeting.

20. Obiter Dicta:

On the basis of the provisions contained in Sections 2 (1), 2 (r) and 2 (t) and Sub-section (2) of

Section 34 of the Act, there is no difficulty in holding that only 1/3rd elected Members of the

Panchayat Samiti are sufficient to requisition a special meeting for discussing the no confidence

motion against the Pramukh/Up-Pramukh as in terms of the provisions contained in Sub-section

(2) of Section 34 of the Act, it is only the elected Members of the Panchayat Samiti who are

authorised to vote on a motion of no confidence against Pramukh/Up-Pramukh.



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X. Mahesh Jha and Ors. v. The State of Bihar and Ors.

1. State: Bihar



4. Name of Bench: Aftab Alam , J.

5. Case no.: C.W.J.C. No. 2229 of 1994

6. Name of the cases: Mahesh Jha and Ors. v. The State of Bihar and Ors.


8. Appellant: Mahesh Jha and Ors.




Whether the directions given by the Collector, Sitamarhi to return their services from different

Panchayat Samities to the Zila Parishad, Sitamarhi and to recover from the Petitioners the salary

paid to them in the capacity as Government servant while they worked in the Panchayat Samities

on being transferred from the Zila Parishad was valid?


If the directions given by the Collector, Sitamarhi to return their services from different

Panchayat Samities to the Zila Parishad, Sitamarhi and to recover from the Petitioners the salary

paid to them in the capacity as Government servant while they worked in the Panchayat Samities

on being transferred from the Zila Parishad was valid?

13. Reference taken from the case: None


15. Area of Dispute Category: Dispute among Panchayats and between Panchayat and State

Agencies

16. Provisions of law Involved: Section 50(1), Section 51 and Section 66(3) of Bihar Panchayat

Samiti and Zila Parishad Act, 1961

17. Gist of Case:

The Petitioners 1 to 4 were appointed, as Road Peons in the District Board, Muzaffarpur and

were posted to work in the different blocks while Petitioner No. 5 was appointed as a Road Peon



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in the District Board, Sitamarhi and was posted to work at Belsand block. After the abolition of

the District Board, Sitamarhi the Road Peons of Sitamarhi Zila Parishad were transferred to the

different Panchayat Samities. The Petitioners joined the respective Panchayat Samities and

started getting their salary. A few years afterwards with the revision of salary of Government

employees in terms of the report of the 5th pay revision committee, a question arose regarding

the scale of pay that might be given to the Petitioners and in course of correspondence on that

question, it transpired that their transfer to the Panchayat Samities itself was on the basis of a

letter which was cancelled shortly after its issuance. Thereafter, the Collector issued the

impugned order directing for the immediate return of the Petitioners services to the Zila parishad

and for taking steps for recovery of the amounts paid to them as salary in their capacity as

Government employees.

The consequence of abolition of the District Board was provided in Section 66(3) of the Bihar

Panchayat Samiti and Zila Parishad Act, 1961 according to which the officers and other

employees of the abolished District Board would be absorbed in the establishment of the Zila

Parishad or the Panchayat Samities or otherwise as the State Government may deem fit. It was

further stated in the counter affidavit that in this case there was no direction of the State

Government to absorb the Petitioners in the Panchayat Samities as Government employees and

hence they would continue to be the employees of the Zila Parishad coming in place of the

abolished District Board. This according to the counter affidavit on behalf of the Respondents

was in terms of the proviso to Sub-section (1) of Section 50 of the Act.

The five petitioners seek to challenge the directions given by the Collector, Sitamarhi to return

their services from different Panchayat Samities to the Zila Parishad, Sitamarhi and to recover

from the Petitioners the salary paid to them in the capacity as Government servant while they

worked in the Panchayat Samities on being transferred from the Zila Parishad.


The Court held that the state Government never took decision in terms of Section 66(3) of Bihar

Panchayat Samiti and Zila Parishad Act, 1961 on question of absorption of Petitioners. First,

letter was issued by Director, Panchayati Raj permitting transfer of Petitioners’ services to

Panchayat Samities. After that by letter Deputy Development Commissioner was directed that he

was to find work for Petitioners and to take work from them treating them to be employees of

Zila Parishad. From neither of the two letters it appeared that the state government took decision



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in terms of section 66 (3) of the Act on consideration of material facts and circumstances of the

case.

The Court directed the State Government to take a decision on the question of the Petitioners

absorption in terms of Section 66(3) of the Act after taking into account all the material facts and

circumstances. The decision must be taken within three months from the date of

receipt/production of a copy of the order. The Petitioners continuance in the different Panchayat

Samities will abide by the final decision taken by the Government. Till a final decision was

taken by the Government, the Petitioners would continue to be treated as employees of the

Panchayat Samities, having been transferred there by order and they will also be entitled to their

salary from their respective Panchayat Samities. The Petitioners current salary as well as the

arrears of their salary, if any, must be paid to them from their respective Panchayat Samities

without any delay.The petition was thus allowed.


The State Government must take a decision on the question of the Petitioners’ absorption in

terms of Section 66(3) of the Bihar Panchayat Samiti and Zila Parishad Act, 1961 after taking

into account all the material facts and circumstances.

20. Obiter Dicta:

The State Government never took a decision in terms of Section 66(3) of the Bihar Panchayat

Samiti and Zila Parishad Act, 1961 t on the question of absorption of the Petitioners. The court

verified it from the letters in evidence and other materials and facts.



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STATE OF CHHATISGARH

I. Ganesh Ram Koshare v. State of Chhattisgarh & Ors

1. State - Chhattisgarh

2. Court - High Court of Chhattisgarh

3. Bench - Single

4. Name of bench - L.C. Bhadoo, J

5. Case no-2004 (2) CGLJ 327

6. Name of the case- Ganesh Ram Koshare v. State of Chhattisgarh & Ors


8. Name of Appellant - Ganesh Ram Koshare

9. Name of Respondent - State of Chhattisgarh & Ors

10. Case type – Writ Petition(civil)

11. Main law points involved- Whether the substantial compliance of the provisions of

Sections 3, 8, 125, 126 and 129B of the Madhya Pradesh (Panchayat Raj Avam Gram Swaraj)

Adhiniyam, 1993 (No. 1 of 1994) and Rules 3 and 4 of the Chhattisgarh Panchayat Election

Rules, 1995 has been made?

12. Grounds of challenge-

Exercising powers by Collector under the Panchayat Act for delimitation


• The Corporation of Calcutta and Anr. v. Liberty Cinema AIR 1965 SC 1107;

• State of U.P. and Ors. v. Pradhan Sangh Kshettra Samiti and Ors 1995 Supp (2) SCC

305;

• Sundarjas Kanyalal Bhathija and Ors. v. The Collector, Thane, Maharashtra and Ors AIR

1990 SC 261;

• The Tulsipur Sugar Co. Ltd. V. The Notified Area Committee, Tulsipur AIR 1980 SC

882;

• M.R.F. Ltd. V. Inspector Kerala Govt. And Ors (1998) 8 SCC 227;

• Sukumar Mandal v. State of M.P. and Ors. 1998 (1) Vidhi Bhasvar 265;

• State of Punjab v. Tehal Singh and Ors 1995 MPLJ 152;

• Rajdhar Singh v. State of M.P. and Anr 1995 MPLJ 152



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14. Area of dispute – Powers

15. Area Of Dispute Category -Dispute between State/ZP/BP/GP

16. Provisions of Laws Involved - Sections 3, 8, 125, 126 and 129B of the Madhya Pradesh

(Panchayat Raj Avam Gram Swaraj) Adhiniyam, 1993 (No. 1 of 1994) and Rules 3 and 4 of the

Chhattisgarh Panchayat Election Rules, 1995

17. Gist of case - Aggrieved persons challenged the legality, propriety and correctness of the

notifications in pursuance of the formation of villages as per the population census. The

petitioner filed the case questioning the legality of power of Governor to authorize the Collectors

for the purpose of constituting Panchayats as per Sections 3, 8, 125, 126 and 129B of the Act

and Section 93 of the Act (Madhya Pradesh (Panchayat Raj Avam Gram Swaraj) Adhiniyam,

1993). Preliminary notifications simply depict the existing villages, which form part of the

existing Panchayat and the population as per Census 2001. Through these preliminary

notifications, the proposed changes were not indicated. Without any proposals in all these

matters, the respective Collectors either created the Panchayats or shifted the villages from one

Panchayat area to another Panchayat area. Therefore, under notification dated 23-2-1999 the

legal authority of the Collectors of respective revenue districts under the provisions of the Act

was questioned upon.

18. Operating portion of the judgement- The court relied on the constitutional provisions

such as Article 154 and Article 163 read with Article 166 to establish that the Governor except

where he is required under the Constitution to exercise the functions in his discretion, is to

exercise his powers on the aid and advice of the Council of Ministers. Whether it is a notification

issued by the Government or a general or special order issued by the State Government,

constitutionally, both are the acts of the Governor. The above notification authorizing the

Collectors to function on behalf of the Government has been issued under Sections 3, 125, 126

and 129B of the Act. Therefore, it cannot be said that the powers were not exercised by the

Governor of the State. Moreover the collectors have not sub delegated to the SDO, instead the

latter have just performed ministerial work of collecting suggestions and opinions if any. Taking

into the legislative character of the impugned notification the principle of hearing and natural

justice cannot be applied as such provisions are absent in the said Act. Hence writ petitions were

dismissed.



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Parliament has passed the Panchayat Extension to Scheduled Area Act, 1996 in exercise of the

powers under Article 243M of the Constitution. Thereafter, by an amendment in the M.P.

Panchayat Raj Adhiniyam, 1993 Chapter XIV-A has been added. This chapter has been given

overriding effect in respect of the provisions of the Act. Therefore, the definition of “village” in

this chapter overrides the definition of village given in Section 3 of the Act. Thereafter, the M.P.

Scheduled Areas Gram Sabha (Constitution, Procedure of Meeting and Conduct of Business)

Rules, 1998 have been framed. Therefore, binding by the earlier judgments of Supreme Court, it

can be said that the said exercise of power is legislative in character and the Courts cannot

interfere in the exercise of such powers.

20. Obiter Dicta –

The act of the Respondents/State by constituting Panchayat for a village for the purpose of the

Act, which was necessitated on account of the general Census 2001, was legislative in nature, no

right to the Petitioners arose for hearing and principles of natural justice does not apply. Bare

reading of Sections 3, 125, 126 and 129B of the Act and Rules 3 and 4 of the Rules do not

contemplate hearing of objectors or the persons who gave their suggestions in response to

preliminary notifications.



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II. Jitendra Raj v. State of Chhattisgarh


2. Court - High curt of Chhattisgarh

3. Bench – Division Bench

4. Name of bench - Dhirendra Mishra and Ranganath Chandrakar, JJ.

5. Case no- 2011 (1) CG.L.R.W. 358

6. Name of the case- Jitendra Raj v. State of Chhattisgarh


8. Name of Appellant - Jitendra Raj

9. Name of Respondent - State of Chhattisgarh

10. Case type – Writ Petition (civil)

11. Main law points involved- Sections 13(4)(ii), 13(6), 17(4), 23 (3) (ii), 23 (5), 25 (2) (b),

30 (3) (ii), 30 (5) and Section 32 (2) (i) (b) of Chhattisgarh Panchayat Raj Adhiniyam, 1993 (in

short "the Act of 1993"), inserted vide the Chhattisgarh Panchayat Raj (Amendment) Act, 2008

(No. 13 of 2008) is ultra vires the provisions of Article 243D of the Constitution of India, which

empowers the State Legislature to provide for reservation for SC, ST and OBC.

12. Grounds of challenge- Article 243K (4) only empowers the State Legislature to make

provisions with respect to all matters relating to, or in connection with, election to the

Panchayats. However, the Legislature cannot increase or reduce the reservation in Panchayats or

the term of rotation of reservation in Panchayats, and therefore, increasing the rotation of term

for reservation of two consecutive general elections is ultra vires and unconstitutional.


• Services Tribunal Bar Association v. State of UP and another AIR 2003 SC 1115;

• Govt. of Andhra Pradesh and others v. Smt. P. Laxmi Devi 2008 AIR SCW 1826 ;

• Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat and others AIR 2008 SC 1892;

• Union of India v. Rakesh Kumar and others 2010 AIR SCW 657;

14. Area of dispute – Reservation

15. Area of Dispute Category - Reservation related to SC/ST/&Women, Backwards Class

16. Provisions of Laws Involved - Constitution-Article 243K (4)



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Sections 13(4)(ii), 13(6), 17(4), 23 (3) (ii), 23 (5), 25 (2) (b), 30 (3) (ii), 30 (5) and Section 32

(2) (i) (b) of Chhattisgarh Panchayat Raj Adhiniyam, 1993 (in short "the Act of 1993"), inserted

vide the Chhattisgarh Panchayat Raj (Amendment) Act, 2008 (No. 13 of 2008).

17. Gist of case – The Act of Chhattisgarh Panchayat Raj Adhiniyam, 1993 was enacted to

consolidate and amend the law relating to establishment of Panchayats with a view to ensure

effective involvement of the Panchayati Raj Institutions in the local administration and

development activities. Section 13 deals with constitution of Gram Panchayat, whereas Section

17 deals with election of Sarpanch and Up-Sarpanch and Section 23 provides for division of

block into constituencies, and Section 25 deals with election of President and Vice-President of

Janpad Panchayat. Section 30 deals with division of District into constituencies and Section 32

deals with election of President and Vice-President of Zila Panchayat. Under the aforesaid

sections, the provisions have also been made for reservation for Scheduled Castes (SC),

Scheduled Tribes (ST) and Other Backward Classes (OBC) in the Panchayat by rotation to

different constituencies by the Collector in the prescribed manner. By the impugned amendment

it has been provided that the term of consecutive two general elections of Panchayat shall

constitute one rotation. The petitioners hereunder challenged the constitutional validity of the

provision.

18. Operating portion of the judgement- Sub-clause (4) of Clause 243K empowers the

State Legislature to make provisions with respect to matters relating to, or in connection with,

elections to Panchayats. The duration of Panchayats has been fixed as five years under Article

243E (1) of the Constitution. However, while providing for rotation of reserved seats under

Article 243D, the Parliament has consciously refrained from fixing term/duration of rotation.

The term “rotation” occurring in Article 243D of the Constitution cannot be restricted to one

term of the Panchayat and the impugned amendment in Sections 13(4)(ii), 13(6), 17(4), 23(3)(ii),

23(5), 25(2)(b), 30(3)(ii), 30(5) and Section 32(2)(i)(b) of Chapter III of the Act of 1993,

whereby it has been provided that the term of consecutive two general elections of Gram

Panchayat shall constitute one rotation, cannot be held ultra vires of Article 243D or any other

provisions of the Constitution. The petitions were without any merits and thus, accordingly

dismissed.

19. Ratio Decidendi- It is settled law that the constitutional validity of any Act can be

challenged only on two grounds: (i) lack of legislative competence, and (ii) violation of any of



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the fundamental rights guaranteed in Para-III of the Constitution or any other constitutional

provisions.

20. Obiter Dicta- Article 243D(4) specifically provides that offices of the Chairpersons in

the Panchayats at the village or any other level shall be reserved for the SCs, STs and women in

such manner as the Legislature of a State may, by law, provide. Therefore, in the absence of any

specific provision with respect to frequency of rotation in the Constitution, the State Legislature

is competent to decide the term of rotation.



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III. Rambai Dansena v. State of Chhattisgarh & Ors.


2. Court - High Court of Chhattisgarh


4. Name of bench – I.M. Quddusi and Prashant Kumar Mishra, JJ.

5. Case no- W.A. NO. 108 OF 2009

6. Name of the case- Rambai Dansena v. State of Chhattisgarh & Ors.


8. Name of Appellant - Rambai Dansena


10. Case type – Writ

11. Main law points involved- Whether the Executive instructions issued by the erstwhile

Madhya Pradesh Government, Mahila Avam Bal Vikas Vibhag on 6th January, 2000,

mentioning conditions for appointment of Anganwadi Worker having the weightage of the

statutory rules if violated, amounts to violation of Art 14 and Art 16 Of the Constitution?

12. Grounds of challenge- It was mandatory that a candidate should have brought his name

in the voter list of that village to show that she is the native of that village. The intention

mentioned in the scheme of Anganwadi Worker and the nutrition programme of Government of

India is that a woman appointed as Anganwadi Worker should know the traditions and systems

of the village for the welfare of the children and their upliftment and should also be accepted by

the local society of the village and should have a quality of leadership so as to provide leadership

as she had to organize Mahila Mandal also.

13. Reference taken from the case- No

14. Area of dispute – Reservation

15. Area of Dispute Category- Reservation related to SC, ST & Women, Backward Class

16. Provisions of Laws Involved - Article 14 and Article 16 of the Constitution

17. Gist of case – Kanthipali, Janpad Panchayat Baramkela invited applications for

appointment of Anganbadi Worker in village - Sahajpali, in which the writ appellant (Smt.

Rambai Dansena) and the respondent No. 6 (Smt. Safed Sidar) applied with the other candidates.

The Selection Committee i.e. Village Panchayat Kanthipali made selection and consequently the



526

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writ appellant was selected for appointment but the respondent No. 6 was not selected and

appointed. The respondent No. 6 challenged the order of appointment of the writ appellant dated

19.1.2007 before the Collector which was allowed but the writ appellant filed a revision before

the Director, Panchayat, who allowed the revision on 26.11.2008. Feeling aggrieved the

respondent No. 6 filed a Writ Petition (S) No. 6998/2008 before this Court which was heard and

allowed by the learned Single Judge. The writ appellant, who was selected and appointed, filed

the writ appeal.

18. Operating portion of the judgement-

Court held that once a rule has been made and acted upon, the same was to be acted upon for all

and no relaxation or departure from the rule was possible for a particular candidate. The court

allowed the writ appeal and set aside the impugned order dated 15.12.2008 passed in W.P.(S)

No. 6998/2008 and the order dated 28.2.2009 passed in Review Petition No. 8/2009, by the

learned Single Judge.

19. Ratio Decidendi: once a rule has been made and acted upon, the same was to be acted

upon for all and no relaxation or departure from the rule was possible for a particular candidate.

If that rule was to be relaxed, the same was liable to be relaxed for all and not for an individual.

20. Obiter Dicta: Once applications were invited and certain conditions have been imposed,

including that a candidate’s name should find place in the voter list, then there would have been

so many prospective candidates who could not be selected and find place in the selection process

because of the reason that their names were not included in the voter list.



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IV. Yashwant Kumar Sahu v. State of Chhattisgarh & Ors


2. Court - High Court Of Chhattisgarh


4. Name of bench - K.H.N. Khuranga, C.J. and L.C. Bhadoo,J.

5. Case no-2003 (2) CGLJ 128

6. Name of the case- Yashwant Kumar Sahu v. State of Chhattisgarh & Ors


8. Name of Appellant - Yashwant Kumar Sahu



11. Main law points involved- Whether Section 36(1)(m) of Chhattisgarh Panchayat Raj

Avam Gram Swaraj Adhiniyam, 1993 (for short ‘the Adhiniyam’) are held intra vires of the

Constitution?

12. Grounds of challenge- The classification made has no nexus with the object of

popularizing family planning.


• Javed and Ors. v. State of Haryana and Ors AIR 2003 SC 3892

14. Area of dispute- Election

15. Area Of Dispute Category - Cancellation

16. Gist of case - The Petitioners challenged the constitutional validity of the provision of

Clause (m) of Sub-section (1) of Section 36 of Chhattisgarh Panchayat Raj Avam Gram Swaraj

Adhiniyam, 1993 (for short ‘the Adhiniyam’) where in the legislation decided to disqualify

persons for election of Panchayats having more than two children on or after 26th day of

January, 2001, the date of commencement of the Act 16 to popularize family welfare/family

planning programme.

17. Provisions of Laws Involved- Clause (m) of Sub-section (1) of Section 36 of

Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993



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Section 36(1)(m) of Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short

‘the Adhiniyam’).

18. Operating portion of the judgement- Provision of Section 36(1)(m) were held intra

vires of the Constitution as the classification is well defined and well perceptible. Therefore, the

classification did not suffer from any arbitrariness. The writ petitions were accordingly

dismissed as the provisions of Section 36 (1) (m) of the Adhiniyam were held to be intra vires.

19. Ratio Decidendi: Persons having more than two living children are clearly

distinguishable from persons having not more than two living children. The two constitute two

different classes and the classification is founded on an intelligible differentia clearly

distinguishing one from the other. One of the objects sought to be achieved by the legislation is

popularizing the family welfare/family planning programme. The disqualification enacted by the

provision seeks to achieve the objective by creating a disincentive.

20. Obiter Dicta: The Parliament and every State Legislature has power to make laws with

respect to any of the matters which fall within its field of legislation under Article 246 read with

Seventh Schedule of the Constitution. A legislation by one of the States cannot be held to be

discriminatory or suffering from the vice of hostile discrimination as against its citizens simply

because the Parliament or the Legislatures of other States have not chosen to enact similar laws.

Such schemes are implemented in a phased manner and it is not necessary that such policy must

be implemented in one-go as the implementation in a phased manner is welcome for it receives

gradual willing acceptance and invites lesser resistance.



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DELHI

I. Balwan Singh and Ors v. Settlement Officer & Ors

1. State - Delhi

2. Court - High Court Of Delhi

3. Bench - Single

4. Name of Bench - Hon'ble Mr. Justice Sunil Gaur

5. Case No- W.P.(C) No. 8965/2007

6. Name of the case- Balwan Singh and Ors v. Settlement Officer & Ors.


8. Name of Appellant - Balwan Singh and Ors

9. Name of Respondent - Settlement Officer & Ors.


11. Main law points involved- Whether Section 18 of the Delhi Panchayat Raj Act, 1954

has been violated jurisdictionally?

12. Grounds of Challenge- Jurisdictional error on consolidation authorities as the power to

regulate places for disposal of the dead body lies with the concerned Gram Panchayat as per

Section 18(j) of The Delhi Panchayat Raj Act, 1954 to shift the cremation ground from one place

to another during the consolidation proceedings.


• Rajinder Singh and Ors. v. Government of the National Capital Territory of Delhi and

Ors., rendered on 17th August, 2007

14. Area of dispute – Jurisdiction

15. Area of Dispute Category –Dispute over territorial jurisdiction of State.

16. Provisions of Laws Involved- Section 18(j) of The Delhi Panchayat Raj Act, 1954

17. Gist of case –

21 petitioners claiming to be the residents of Village Mundka, Delhi, assail the impugned order

of 1st February, 2007 whereby their revision petition under Section 42 of East Punjab Holdings

(Consolidation & Prevention of Fragmentation) Act, 1948 (hereinafter referred as the

Consolidation Act) stood dismissed. It was maintaining order of Settlement Officer



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(Consolidation) of 4th April 1983 requiring shifting of cremation ground to new location at the

outskirts of extended lal dora of this village and by holding that there is no provision in the

Consolidation Act to recall or review the order of 8th October, 1982 passed by his predecessor.

According to counsel for petitioners impugned order of 1st February, 2007 (Annexure P-2)

suffered from jurisdictional error as the power to regulate places for disposal of the dead body lie

with the concerned Gram Panchayat as per Section 18(j) of The Delhi Panchayat Raj Act, 1954

and so Consolidation Authorities had no jurisdiction to shift the cremation ground from one

place to another during the consolidation proceedings. The counsel for respondents countered

the stand of petitioners, by asserting that regulation of cremation ground was the function of

Gaon Panchayat but the lands reserved for common purposes were always relocated during the

consolidation proceedings and there was a valid justification to do so in the instant case.


It was held that the impugned order did not suffer from any jurisdictional or manifest error as the

jurisdiction to relocate public utility land during consolidation proceedings is of consolidation

authorities and not of Gaon Sabha/Gaon Panchayat, whose one of the duty and function as

enumerated in Section 18 of the Delhi Panchayat Raj Act, 1954, was to regulate and maintain

such cremation grounds. Financial Commissioner's order of 8th October, 1982 relocating the

cremation ground outside the extended abadi of village was not only sound on facts but in law as

well. The writ petition was dismissed.

19. Ratio Decidendi –

Jurisdiction to relocate any public utility land of Gaon Sabha/Gaon Panchayat during

consolidation proceeding is of consolidation authorities and not of Gaon Sabha/Gaon Panchayat.

20. Obiter Dicta-

The scope of jurisdiction of this Court under Article 226 of the Constitution of India is limited to

correcting errors of manifest injustice and therefore, the cases pertaining to relocation of any

public utility land is outside the scope of High Court to deal with especially when the law is very

clear on this.



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II. Chand Sharma and Ors. v. Lt. Governor of Delhi and Ors

1. State - Delhi

2. Court - High Court of Delhi

3. Bench - Division

4. Name of Bench -R.N. Aggarwal and Jagdish Chandra, JJ.

5. Case no-33(1987) DLT 164; (1987) ILR 1Delhi193

6. Name of the Case- Chand Sharma and Ors. v. Lt. Governor of Delhi and Ors.


8. Name of Appellant - Chand Sharma and Ors

9. Name of Respondent -.Lt. Governor of Delhi and Ors


11. Main law points involved- Whether there is a violation of Rule 178(2) of Delhi

Panchayat Raj Act, 1954?


Total violation of the alleged criteria set out in the amended guidelines and that the allotments

have been made without compliance with any procedure as prescribed by law or in accordance

with the principles of natural justice, without any valid resolution of the Gram Panchayat and

without any scrutiny regarding the eligibility of the allottees.


14. Area of dispute – Properties

15. Area Of Dispute Category: Dispute over ownership of buildings and land.

16. Provisions of Laws Involved: Rule 178 (2) of the Delhi Panchayat Raj (Amendment)

Rules, 1976


Respondent No. 2 Delhi Administration issued an order dated 18-8-1982 under Rule 178 (2) of

the Delhi Panchayat Raj (Amendment) Rules, 1976, under which some guidelines were framed

for the purposes of allotting lands in village Harevli. Subsequently, the aforesaid order was

amended wherein it was provided that a Committee should be formed of the Block Development

Officer, Tehsildar and the Village Pradhan who would receive the applications which would be

invited after due publicity and the limit of Rs. 7501- as income of the allottee was sought to be



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raised to Rs. 1200/- per month. The petitioners had filed the writ petition under Article 226 of

the Constitution of India for quashing the allotments made by the respondents under the 20-Point

Programme of the Government of India in village Harevli, Delhi and also for issuance of an

appropriate writ, order or direction in the nature of mandamus directing the respondents to

perform their duties in accordance with law.


It was held that the petitioners could approach the Deputy Commissioner with the request to

proceed with the enquiry and bring it to conclusion, where after if need be, they could go in

appeal before the Chief Commissioner for the redressal of their grievances. Thus, the writ

petition stood dismissed.

19. Ratio Decidendi

The various allottees who are very large in numbers raising complicated disputed question of

fact could be determined by the Deputy Commissioner under sub-section (2) of S. 75 of the Act,

and are not matters for invoking the extra-ordinary writ jurisdiction of this Court under Article

226 of the Constitution of India.

20. Obiter Dicta-

The Gaon Sabha was competent to allot plots of the land for residence to various people under S.

74(1) of the Act and any substantial irregularity therein or non-compliance with the provisions of

the Act while making the allotments, have been made justifiable before the Deputy

Commissioner and then before the Chief Commissioner by way of an appeal.



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III. Kewal Singh Chadha and Ors. v. The Director (Panchayats) A.D.M. and Ors.

1. State - Delhi

2. Court -High Court Of Delhi


4. Name of Bench - D.P. Wadhwa and Dr. M.K. Sharma, JJ.

5. Case no-1995 IVAD (Delhi) 537 or 63 (1996) DLT 367

6. Name of the case- Kewal Singh Chadha and Ors. v. The Director (Panchayats) A.D.M.

and Ors.


8. Appellant - Kewal Singh Chadha

9. Respondent - The Director (Panchayats) A.D.M. and Ors


11. Main law points involved- Whether the provisions of Sections 36 and 95 of the Delhi

Panchayat Raj Act, 1954 have been violated?

12. Grounds of challenge- The legality & validity of Section 86A of the Delhi Land

Reforms Act, 1954.


14. Area of dispute – Others

15. Area of Dispute Category- Dispute among Panchayats and between Panchayats and

State Departments/ agencies.

16. Provisions of Laws Involved- Section 86A of the Delhi Land Reforms Act, 1954;

Sections 36 and 95 of the Delhi Panchayat Raj Act, 1954.


The petitioners were allotted the lands by the Gaon Sabha and became lessees under the Gaon

Sabha/Gaon Panchayat. The rent in respect of the aforesaid land lease out in favor of the

petitioner was being deposited by petitioners. However, subsequently the Gaon Sabha/ Gaon

Panchayat refused to accept the rent from the petitioners. On 22.1.1990 the Gaon Sabha was

superseded and thereafter on 6.6.1992 the impugned notice was issued by the Director

(Panchayats), respondent No. 1 alleging the petitioners as encroachers of Gaon Sabha land,



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situated at Andheria Mod. The petitioners appeared before respondent No. 1 and filed their

written statements. The respondent No. 1 passed an order dated 12.1.1993 declaring the

petitioners as encroachers and in possession of the Gaon Sabha land without legal title or

documents and further ordered that the proceedings under Section 86A of the Delhi Land

Reforms Act, 1954 be initiated against the petitioners for their ejectment from the Gaon Sabha

lands. Accordingly, by this writ petition, the petitioners have challenged the legality & validity

of the aforesaid impugned notice.


A reading of the provisions of Section 36 of the Delhi Panchayat Raj Act would show that there

is no bar for a person or the Gaon Sabha from establishing his or it’s right in any Civil or

Revenue Court having jurisdiction to try such matters inspite of the fact that a proceeding has

been initiated and decided in accordance with the provisions of Section 36(1) of the Delhi

Panchayat Raj Act. The petitioners were unable to satisfy the court that they have been lessees in

respect of the land in question since no such lease deed could be produced before us in support

of their contention There is no bar for the respondents to initiate a proceeding against the

petitioners as provided for under Section 86A of the Delhi Land Reforms Act which appears to

be the real intention and purport terms of the impugned order. Accordingly, the court found no

merit in the contention of the learned Counsel for the petitioners that the aforesaid action of the

respondents is bad in law. The writ petition was dismissed.

19. Ratio Decidendi–

There is no bar for the respondents to initiate a proceeding against the petitioners as provided for

under Section 86A of the Delhi Land Reforms Act. The plea for quashing of the impugned

notice dated 6.6.1992 issued by the Director (Panchayats)/Additional District Magistrate, Delhi

under Section 36 of the Delhi Panchayat Raj Act, 1954 read with Rule 47(a) of The Delhi Land

Reforms Rules and plea for quashing of the order dated 12.1.1993 passed by the Director

(Panchayat) cannot be done.

20. Obiter Dicta-

A reading of the provisions of Section 36 of the Delhi Panchayat Raj Act would show that there

is no bar for a person or the Gaon Sabha from establishing his right. On a conjoint reading of the

aforesaid two provisions of the Delhi Panchayat Raj Act and the Delhi Land Reforms Act, it is

apparent that whether or not a proceeding is initiated and concluded under the provisions of



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Section 36(1) of the Delhi Panchayat Raj Act, a Revenue Officer is empowered to initiate a

proceeding for ejecting any person from Gaon Sabha land occupying such land without title,

who is liable to be ejected from any land on a suit of the Gaon Sabha provided the procedure

prescribed for the purpose is complied with.



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IV. Kashi Ram and Other v. Gaon Sabha

1. State - Delhi


3. Bench - Single

4. Name of Bench -Indermeet Kaur, J

5. Case no- 178 (2011) DLT 319

6. Name of the case – Kashi Ram and Other v. Gaon Sabha


8. Appellant - Kashi Ram And Other

9. Respondent - Gaon Sabha

10. Case type – Civil Appeal

11. Main law points involved- Whether service of Notice under Section 99 of the Delhi

Panchayat Raj Act, 1954 is necessary before filing the suit?

12. Grounds of challenge- Section 99 of the Delhi Panchayat Raj Act, 1954 that specifically

postulates that no suit shall be instituted against Gaon Sabha or Gaon Panchayat or against a

member, Panch Officer or servant of the Gaon Panchayat or Circle Panchayat or against any

person acting under it or his direction for anything done or purporting to have been done in any

official capacity, until a two months notice has seen served, in writing.


14. Area of dispute – Finance

15. Area of Dispute Category - Leasing

16. Provisions of Laws Involved- Section 99 of the Delhi Panchayat Raj Act, 1954


Appeal was directed against the impugned judgment whereby the suit filed by the Plaintiff,

seeking permanent injunction against the Defendant i.e., Nasipur, had been dismissed. The case

of the Plaintiff was that they are co-owners in possession of 4 Bhighas 14 Biswas land in Khasra

No. 365, 8 bighas 11 Biswas in Khasra No. 66 of the village, Palam since 1948-49. In 1975, the

Pradhan of the village tried to dispossess the Plaintiff. A suit was filed wherein a decree was

passed in favour of the Plaintiff in terms of which it was held that after 1954, Plaintiffs were in

possession of the affronted property. It was contented that the Defendants are threatening to



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interfere with the peaceful possession of the Plaintiff. Thus suit for permanent injunction was

filed.


The appeal was allowed. Matter was remanded back to the concerned District & Sessions Judge,

Tis Hazari Courts, Central District. Parties were directed to appear before the concerned Court

which should assign the case to the concerned civil Court to decide the case on its merits after

giving opportunity to the parties to adduce evidence.

19. Ratio Decidendi–

The impugned judgment has erred in holding that the suit is not maintainable in view of the

aforenoted provision. There is force in this submission. Parties should have been granted an

opportunity to lead evidence before deciding this issue as to whether the acts of the defendant

qualified in an official capacity or not.

20. Obiter Dicta-

Section 99 of the Delhi Panchayat Raj Act, 1954 specifically postulates that no suit shall be

instituted against a Gaon Sabha or a Gaon Panchayat or against a member, Panch officer of

servant of the Gaon Panchayat or Circle Panchayat or against any person acting under it or his

direction for anything done or purporting to have been done in any official capacity, until a two

months notice has served, in writing. It is urged that the act of the defendants was not in any

official capacity; the impugned judgment has erred in holding that the suit is not maintainable in

view of the aforenoted provision.



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V. Ram Narain v. The State

1. State - Delhi


3. Bench - Single

4. Name of bench -J.D. Jain, J.

5. Case no- Criminal Revision Appeal No. 4 of 1978

6. Name of the case- Ram Narain v. The State


8. Name of Appellant - Ram Narain

9. Name of Respondent - The State

10. Case type – Review Petition (criminal)

11. Main law points involved- Whether Sec 50 of the Delhi Panchayat Raj Act can be

invoked in the instant criminal proceedings?

12. Grounds of challenge- If Sec 50 of the Delhi Panchayat Raj Act can be invoked in the

instant criminal proceedings?


14. Area of dispute – Administration

15. Area of Dispute Category – Disputes among Panchayats and between Panchayats and

State Departments/Agencies.

16. Provisions of Laws Involved- Sec 50 Delhi Panchayat Raj Act


On 19th of April, 1975, a report was lodged by one Partap Singh at Police Station Najafgarh

complaining that the petitioner had broken open the locks of the main gate as well as store-cum-

office of his factory. Further according to him the petitioner was found sitting inside the office of

the factory and on enquiry by him with regard to the breaking of locks of the factory premises he

retorted that he had done everything and that the complainant was at liberty to do anything. A

case under Section 448/454/380 of the Indian Penal Code was registered on the strength of that

report and eventually a charge-sheet was put in by the Police under Section 173 Criminal

Procedure Code for prosecuting the petitioner for offence under Section 448 of the Indian Penal

Code. Petitioner disputed that charge-sheet having been filed much after the expiry of the



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prescribed period of limitation, the Court was not competent to take congnisance thereof.

Another objection was that the offence was triable by the Gram Panchayat under the provisions

of Delhi Panchayat Raj Act and as such, the Metropolitan Magistrate was not competent to try

the same. These contentions were repelled by the learned Metropolitan Migistrate vide his order

dated 5th October, 1977 and notice under Section 251 of the Code of Criminal Procedure was

given by the Court to the petitioner as to why he should not be convicted of an offence under

Section 448 of the Indian Penal Code for committing tresspass in the premises of the aforesaid

factory. Hence, the appeal.


Subsection (2) of Section 53-B of the Act provides that a Panchayati Adalat may impose a fine

not exceeding one hundred rupees but no imprisonment may be awarded in default of payment.

It is thus manifested that the Panchayati Adalat cannot in fairness to the parties concerned, be

entrusted with the trial of cases of serious or complicated nature calling for a higher degree of

punishment in the event of the trial culminating in conviction of the accused. Thus intendment of

the Legislature in conferring judicial powers in respect of certain offences on the Panchayati

Adalats simply is that Private parties who wish to institute criminal proceedings against

inhabitants of the same Circle Panchayat may approach them for redress of their grievances. It is

apparently designed to ensure cheap and speedy remedy in cases of petty nature and it is highly

doubtful that the prosecutions launched by the State must as well be tried by Panchayati Adalat.

Hence, the view taken by the learned Magistrate did not appear to be erroneous.


Intendment of the Legislature in conferring judicial powers in respect of certain offences on the

Panchayati Adalats simply is that Private parties who wish to institute criminal proceeedings

against inhabitants of the same Circle Panchayat may approach them for redress of their

grievances. It is apprently designed to ensure cheap and speedy remedy in cases of petty nature

and it is highly doubtful that the prosecutions launched by the State must as well be tried by

Panchayati Adalat.

20. Obiter Dicta-

The Panchayati Adalat cannot in fairness to the parties concerned, be entrusted with the trial of

cases of serious or complicated nature calling for a higher degree of punishment in the event of

the trial culminating in conviction of the accused. Section 53-C whittles down the power of the



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Panchayati Adalat to try cases of previous convicts of certain categories and even public

servants. Lastly, Section 64 lays down the procedure in case a person wishes to institute a suit,

criminal case or proceeding under the Act before a Circle Panchayat. Thus on a conjoint reading

of all these Sections of the Act it would appear that the State is not bound to institute criminal

cases pertaining to cognizable offences in the Adalti Panchayat.



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VI. Shri Rizak Ram v. Rajeev Singh And Others

1. State - Delhi

2. Court - High Court

3. Bench - Single

4. Name of bench -Indermeet Kaur, J.

5. Case no- RSA No. 51 of 2004 and CM No. 2628 of 2004

6. Name of the case- Shri Rizak Ram v. Rajeev Singh And Others


8. Appellant - Shri Rizak Ram

9. Respondent - Rajeev Singh And Others

10. Case type - Appeal

11. Main law points involved- Whether the plaint schedule property comes under the

definition of Section 2(15) of Delhi Panchayat Raj Act, 1954 which defines Shyamlat Deh land?

12. Grounds of challenge- Inconsistency in the Punjab Land Reforms Act or Punjab Tenant

Act with the Delhi Panchayat Raj Act, 1954 on ‘Shyamlat Deh land’.



15. Area Of Dispute Category : Dispute over ownership

16. Provisions of Laws Involved : Section 2(15) of Delhi Panchayat Raj Act, 1954


The case of the Plaintiff was that this land was Shyamlat Deh land. Contention of the Gaon

Sabha was that this land was Gaon Sabha land; Plaintiff having no right or title in the suit land;

no injunction can be granted in his favour. On the basis of oral and documentary evidence led,

the suit of the Plaintiff stood dismissed. The plaintiff was relying on the repealed Punjab Land

Reforms Act, 1887 for the definition of Shyamlat Deh land.


The learned trial court had rightly noted that Section 2 of the Delhi Land Reforms Act 1954 had

repealed the Punjab Land Reforms Act, 1887. The definition of Shyamlat Deh cannot be derived

from this repealed provision. Under the Delhi Panchayat Raj Act, 1954 Section 2(15) defines

“public land” or “common land”. Definition as contained in Delhi Panchayat Raj Act, 1954



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defines shyamlat deh as land to be common land which is public land not to be in exclusive use

of any individual or family but which is in the common use of the villagers. Section 7 of the

Delhi Land Reforms Act 1954 being very categorical and clear about the fact that the right of

individual proprietor or proprietor pertaining to waste land and such other land of common

utility shall be terminated on the commencement of Delhi Land Reforms Act, 1954. No

substantial questions of law had arisen, thus the appeal was dismissed.


The land which has been shown in records as Shyamlat Deh is nothing but the land of common

utility and ownership of that cannot vest in any individual or set of individuals.


Section 7 of the Act is very categorical and clear about the fact that the right of individual

proprietor or proprietor pertaining to waste land grazing or collection of forest due etc. and such

other land of common utility shall be terminated on the commencement of Delhi Land Reforms

Act, 1954. The explanation attached to Section 7 in Clause c (ii) defines the land of common

utility and as per that the land recorded in the last settlement as such would be part of the land of

common utility.



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STATE OF GUJARAT

I. Ashok Kumar Bhavsang Bhai Chaudhary v. The Director of Municipalities and 14

Ors

1. State: Gujarat

2. Court: Gujarat High Court (at Ahmedabad)

3. Bench: Single bench

4. Name of Bench: AbhilashaKumari, J.

5. Case No.: Special Civil Application No. 29162 of 2007

6. Name of the case: Ashok Kumar Bhavsang Bhai Chaudhary v. The Director of

Muncipalities and ors


8. Appeallants: AshokkumarBhavsangbhaiChaudhary

9. Respondent: The Director of Municipalities and 14 Ors.

10. Case types: Special civil application

11. Main law points involved:

a. whether the petitioner, who is the President of the Nagarpalika, incurred the disqualification

under Section 11(1) (h) of the Gujarat Municipalities Act 1963 for having more than two

children, after his election to the said post?


Section 11,11(1), 31, 33, 33(1), 38,38(1), 38(2), 38(4) Gujarat Municipalities Act, 1963; Gujarat

Local Authorities Laws (Amendment) Act, 2005; Section 175(1), 177(1) Haryana Panchayati



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191

Raj Act, 1994; Gujarat Municipalities (Amendment) Act, 2000; Articles 25, 226 of the

Constitution of India - Article 25

13. Reference taken from other cases:

• Shree Ram Packaging and Anr. v. Union of India and Anr. 1990(2) GLH 343

• The Anant Mills Co. Ltd. (Under Liquidation) v. Municipal Corporation for the city of

Ahmedabad and Ors. 1993(2) GLH 897

• Javed and Ors.v. State of Haryana 2003(8) SCC 369


15. Area of Dispute Category: Cancellation

16. Provision of Law Involved: Section 11,11(1), 31, 33, 33(1), 38,38(1), 38(2), 38(4) Gujarat

Municipalities Act, 1963

17. Gist of case:

The Present petition is filed against an order holding that the Petitioner who was elected as

President of the nagarpalikahas incurred disqualification under Section 11(1)(h) of the Gujarat

Municipalities Act, 1963 for having more than two children, after his election to post of

president.

18. Operating Portion of the judgment:

The court referred to the judgment of the Supreme Court in Javed and Ors. v. State of Haryana

wherein it was held that the statutory provision casting disqualification on contesting for, or

holding, an elective office is not violative of Article 25 of the Constitution. On that basis, it was

held that if a candidate falls within the ambit of any prescribed disqualifications, it necessarily

follows that he will not be qualified to contest or hold that elective, statutory office.

Accordingly, the petition was dismissed.




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Where a statute provides for necessary qualifications, without which a person cannot offer his

candidature for an elective office, the candidate for that office must fulfil those qualifications.

20. Obiter Dicta:

If a person aspires to hold an elective, public office under a particular statute, he must be

prepared to submit to the restrictions imposed upon him, by that statute.



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II. Gopalbhikhemchandas Patel v. District Development Officer and Ors.

1. State: Gujarat

2. Court: Gujarat High Court


4. Name of Bench: D.H. Waghela, J.

5. Case No.: Spl. Civil Appln. No. 1134 of 2010

6. Name of the case: GopalbhiKhemchandas Patel v. District Development Officer and

Ors.


8. Appellants: GopalbhiKhemchand as Patel

9. Respondent: District Development Officer and Ors.



Whether, proceeding instituted against Sarpanch in respect of offences involving moral turpitude

was justified?


Whether, proceeding instituted against Sarpanch in respect of offences involving moral turpitude

was justified?

13. Reference taken from other cases-

• ThakorbhaiBhagabhai v. D.D.O., Surat and Anr. 1980 (1) GLR 966

• NaranbhaiVeljibhaiChaudhary v. (Shri) R.S. Vaghela and Ors. 1996 (2) GLH 251

• BhikhumiyaSarfumiyaMalek v. D.D.O., Mehsana and Anr. 1999 (2) GLH 963



547

194

• SomabhaiBhagwanbhaiGohil v. State of Gujarat and Ors. 2006 (1) GLH 67

• JorabhaiHirabhaiRabari v. District Development Officer, Mehsana District and Anr.AIR

1996 Guj 3


15. Area of Dispute Category – Office of profit related

16. Provision of Law Involved- Section 55, 57, 59, 59(1) of Gujarat Panchayats Act, 1993;

Section 135 of Bombay Police Act ; Section 147, 148, 149, 302, 323, 324, 337, 427, 505 , 506 of

Indian Penal Code ; Article 226 of the Constitution of India

17. Gist of the Case:

The Additional Development Commissioner set aside the order of the district development

officer wherein respondent no 3 was temporarily suspended on the basis that he appeared to be

involved in the offences involving moral turpitude in respect of which penal proceedings were

instituted. The additional development commissioner said that it was difficult to consider the

Respondent’s offences to be in category of offences involving moral turpitude. Hence, this

Petition was filed contending that the aforesaid order of the Additional Development

commissioner was illegal and perverse

18. Operating portion of the Judgment:

DDO was justified and within legal limit of his powers in ordering suspension of Respondent

No. 3. DDO could have completely ignored the aspect of Respondent being involved in an

offence involving or not involving moral turpitude and exercise of power could have been

justified only on ground of Respondent having been detained in prison at relevant time.

Therefore, the impugned order is not only required to be set aside but it has to be deprecated in

no uncertain terms. Hence, impugned order of Additional Development Commissioner was set

aside and the Petition was allowed.


Proceeding instituted against Sarpanch in respect of offences involving moral turpitude was

justified under section 59 of Gujarat Panchayats Act, 1993 which can be considered as

contingency. The contingencies include the contingency of the office bearer being detained in



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prison during trial for any offence, the contingency of such office bearer undergoing sentence of

imprisonment or being detained under any law relating to preventive detention.

20. Obiter Dicta:

The acts involving moral turpitude have to be examined in the context of the facts and

circumstances of each case but the consideration certainly has morality or lack of it as the central

point of reference.



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III. Nathabhaidevabhaizala and Anr. Vs. State Of Gujarat and Ors.

1. State: Gujarat



4. Name of Bench: V.M. Sahai and A.J. Desai, JJ.

5. Case No.: Special Civil Application No. 17901 of 2011

6. Name of the case: Nathabhai Devabhai Zala and Anr v. State of Gujarat and Ors.


8. Appeallants: Nathabhai Devabhai Zala and Anr.

9. Respondent: State of Gujarat and Ors.



a. Whether non reservation of the seat for scheduled castes/scheduled tribes in the village

panchayat election process was justified?

b. Whether or not, the non-reservation of seats vitiates the election process?


Whether non reservation of seats for scheduled castes/scheduled tribes in the village panchayat

election process was justified? Whether or not, the non-reservation of seats vitiates the election

process?


• K. Krishna Murthy (Dr.) and others v. Union of India and another (2010) 7 SCC 202



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• Bihari Lal Rada v. Anil Jain (Tinu) and others, (2009) 4 SCC 1

14. Area of Dispute Name: Disqualification

15. Area of Dispute Category: Office of profit related

16. Provision of law involved:

a. Sections 4, 9(4), 9(5), 243 D of the Gujarat Panchayat Act, 1993

b. Rules 4(1), 11 of the Gujarat Village Panchayats Election (Manner of Allotment

c. of Served Seats by Rotation) Rules, 1994

17. Gist of case:

In the present petition, the petitioners have prayed for quashing and setting aside the impugned

order dated 28.09.2011, issued by respondent No. 2 as well as restraining respondent No. 2 from

allotting a seat reserved for scheduled caste in village Shree Thoriyali for the Village Panchayat

Election, 2011.


The court said that it appeared that Constitution initially did not grant reservation at grass root

level of village panchayat or in municipalities. However, when it was realized that local bodies

have become weak and ineffective for various reasons, Constitution was amended and

reservation with regard to Panchayats came into force w.e.f. 24.04.1993 .The Expression ‘every’

under Article 243-D of Constitution had been intentionally used by Constitution with an object

to give reservation to scheduled caste/ scheduled tribe. The Language embodied in Section 243D

of the Constitution was lifted from the Constitution and was incorporated in Section 9(5)(a)(i) of

Gujarat Panchayat Act, 1993 which provides that one seat in every Village Panchayat in the

State must be reserved for scheduled caste and scheduled tribe.

Thus, the Court said that the Respondents had committed illegality by not reserving a seat for

scheduled caste candidate which vitiated the entire process of panchayat election.

The court directed the respondents to issue notification reserving one seat for scheduled

caste/scheduled tribe.

Accordingly the Petition was allowed.



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One seat in every Village Panchayat in the State must be reserved for scheduled caste and

scheduled tribe under Section 9(5)(a)(i) of Gujarat Panchayat Act, 1993

20. Obiter Dicta:

The Expression ‘every’ under Article 243-D of Constitution had been intentionally used by

Constitution with an object to give reservation to scheduled caste/ scheduled tribe.



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IV. Pruthvisinh Amarsinh Chauhan v. K.D. Rawat or his Successor in Office

Secretary

1. State: Gujarat



4. Name of Bench: J.N. Bhatt, K.R. Vyas and A.L. Dave, JJ.

5. Case No.: Special Civil Application No. 2804 and 4597 of 2001

6. Name of the case: Pruthvisinh Amarsinh Chauhan Vs.K.D. Rawat or his Successor in

Office Secretary


8. Appellants: Pruthvisinh Amarsinh Chauhan

9. Respondent- K.D. Rawat or his Successor in Office Secretary

10. Case types- Reference


Whether or not, the government can issue the notification without again consulting taluka

panchayats and gram panchayat for altering the area of the village?


Whether or not, the government can issue the notification without again consulting taluka

panchayats and gram panchayat for altering the area of the village?


• Kalubhai Keshrisingh v. State of Gujarat and Ors., 1965(6) GLR 451 and 459;

• Nathabhai M. Patel v. State of Gujarat, 1993(2) GLR 992

• Likhi Group Gram Panchayat v. State of Gujarat, 2001(1) GLR 827



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• Chhani Nagar Panchayat and Anr.v. State of Gujarat, 2000(2) GLR 1263

• Union of India v. Sakalchand S. Sheth and Anr., AIR 1977 SC 2328

• Baldevsingh v. State of Himachal Pradesh, AIR 1977 SC 1239

• Bhalod Gram Panchayat v. State of Gujarat, 1986(1) GLR 247

14. Area of dispute-others

15. Area of Dispute Category: Dispute among panchayat and State Dept/Agencies.

16. Provision of law involved-7(2) of the Gujarat Panchayat Act,1993; Section 9 of the Gujarat

Panchayat Act, 1961 ; Articles 226, 227 of the Constitution of India

17. Gist of case:

These petitions were filed under Articles 226 and 227 of the Constitution of India for a Writ of

mandamus or direction for quashing and setting aside Notification dated 3rd April, 2001, issued

by the State of Gujarat under Section 7 of the Gujarat Panchayat Act, 1993. Under the said

Notification, the State Government altered and created new areas under section 7 of the Gujarat

Panchayat Act, 1993. It was found that the Government had initially consulted the necessary

Taluka Panchayats and Gram Panchayats and taken a decision not to bifurcate the village.

Thereafter, the Government took a decision to bifurcate the villages without fresh consultation.


The court looked into the case of Union of India Vs. Sakalchand S. Sheth and Another wherein it

was held that “the term ‘Consultation’ means full and effective and not formal or unproductive

consultation.” The term used is consultation and not concurrence or consent which are not

synonyms to each other, and operate differently. It was further opined that if a proposal has

culminated into a decision, fresh exercise of consultation would be necessary before taking a

fresh decision.


When the statute requires an Authority to consult before taking action, the consultation should

not be a mere formality, but must be genuine and meaningful, then only the object of

incorporation of this cause in the statute by the makers of law would be fulfilled.



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20. Obiter Dicta:

Under section 7(2) of the act, the consultation is not mandatory and every departure therefrom

may not render it void or ineffective, but, the provisions of law has to be saluted in its spirit and

exercise of consultation should be undertaken



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V. Rasikchandra Devshankeracharya and Ors.v. State of Gujarat and Ors.

1. State- Gujarat

2. Court- Gujarat High Court

3. Bench- Division bench

4. Name of Bench- B.N. Kirpal, C.J. and R.K. Abichandani, J.

5. Case No. - 1994 GLH(2) 573

6. Name of the case: Rasikchandra DevshankerAcharya and Ors. v. State of Gujarat and Ors.


8. Appellants: Rasikchandra DevshankerAcharya and Ors.

9. Respondent: State of Gujarat and Ors

10. Case types: Writ petition


Whether or not, the Gujarat Local Authorities (Temporary Postponement of Elections) Act, 1994

is ultra vires the Constitution of India without amending the provisons of Gujarat Panchayats

Act, 1993, Gujarat Municipalities Act, 1963 and Bombay Provincial Municipal Corporations

Act, 1949?

12. Grounds of Challenged:

Inconsistency of Gujarat Local Authorities (Temporary Postponement of Elections) Act, 1994

with the provisions of Gujarat Panchayats Act, 1993 Acts, Gujarat Municipalities Act, 1963 and

Bombay Provincial Municipal Corporations Act, 1949.


• N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors.

• DwarkadasShrinivas of Bombay v. The Sholapur Spinning & Weaving Co. Ltd. and Ors.



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• Smt. Pushpa Devi and others v. Milkhi Ram (Dead) by his L.Rs.

• N.K. Jain and others v. C.K. Shah and others

• National Building Construction Corporation v. Pritam Singh Gill and Ors.

• Commissioner of Expenditure Tax, Gujarat, Ahmedabad v. DarshanSurendra Parekh

• Bennett Coleman and Co. (P) Ltd. v. PunyaPriya Das Gupta

14. Area of dispute: Election


16. Provision of law involved: Gujarat Local Authorities (Temporary Postponement of

Elections) Act, 1994 ; Gujarat Panchayats Act, 1993 Acts; Gujarat Municipalities Act,1963 and

Bombay Provincial Municipal Corporations Act, 1949?

17. Gist of the case:

The three types of local authorities were in existence in Gujarat- i.e., Panchayats in the rural

areas and Municipalities and Municipal Corporations in the urban areas. The Panchayats were

governed by the provisions of the Gujarat Panchayats Act, 1993. The Municipalities were

governed by the Gujarat Municipalities Act, 1963 whereas the Bombay Provincial Municipal

Corporations Act, 1949 dealt with the Corporations. Under the provisions of the aforesaid Acts,

elections were required to be held regularly. The duration of each Panchayat, Municipality and

Corporation was of five years and before the completion of the term, fresh election were

required to be held. Without amending any provision in any of these three Acts, the impugned

Act (the Gujarat Local Authorities (Temporary Postponement of Elections) Act, 1994) had been

passed whereby the election process, including the preparation of the electoral rolls, was

postponed till after 4-1-1995. The writ petitions had been filed challenging the validity of the

Gujarat Local Authorities (Temporary Postponement of Elections) Act, 1994.

18. Operating portion of the judgment:

The court held that the preamble of the impugned Act had stated that electoral rolls were going

to be revised intensively. It had been contended on behalf of Respondents that Election

Commission of India had directed intensive revision of electoral rolls for State Assemblies and



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the same were to be prepared and finalized. This was one of reasons why elections were to be

postponed. Hence, petition was disposed off.


That revision of electoral rolls was a continuous process which had to go on whether there were

elections or no elections.

20. Obiter Dicta:

Merely because electoral rolls were likely to be revised does not mean that elections could not be

held at a point of time



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VI. Administator Barvala Gram Panchayat v. State of Gujarat and Anr.

1. State: Gujarat

2. Court: Gujarat High court (Ahmedabad)

3. Bench: Singe bench

4. Name of Bench: K.S. Jhaveri, J.

5. Case No: Special Civil Application No. 6760 of 1995

6. Name of the case: Administator Barvala Gram Panchayat v. State of Gujarat and Anr.


8. Appellant: Administator Barvala Gram Panchayat

9. Respondent: State of Gujarat and Anr.

10. Case types: Appeal (civil)


a. Whether a person who has been appointed in Panchayat without following procedures laid

down under Section 203(4)(b) of the Gujarat Panchayats Act, 1961 can be treated as a member

of Panchayat service so as to claim pensionary benefits under the Gujarat Panchayat Service

(Pension) Rules, 1976 and the Scheme, 1972,

b. Whether the abovesaid appointee can be treated as an employee retired from Panchayat

service?

12. Grounds of challenge:

The State Government was discriminating amongst the employees of District Panchayat, Taluka

Panchayat and Nagar Panchayat in all the benefits of salary and other allowances and excluded

them from the benefits which extended to them despite the directions of this Court.



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• State of Karnataka v. Umadevi (2006) 4 SCC 1

• Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1

• State of Karnataka v. G.V. Chandrashekar (2009) 4 SCC 342

• State of Gujarat v. R.K. Soni AIR 1984 SC 161

14. Area of dispute: Personnel system

15. Area of dispute category: Appointment related


Sections 3, 102, 102(1), 122, 142, 203, 203(1), 203(2), 203(2A), 203(3), 203(4), 204, 207, 211,

323 of the Gujarat Panchayats Act, 1961; Rules 2, 3, 3(1), 3(4) of the Gujarat Panchayat Service

(Pension) Rules, 1976; Rule 2 of the Gujarat District Panchayat Service Selection Committee

(Functions) Rules, 1964; Rule 3(2), 3(3)GujaratPanchayat Service (Appointing Authorities)

Rules, 1967 - Rule 3(2); Gujarat Panchayat Service (Conditions of Service) Rules, 1977; Gujarat

Panchayat Service (Absorption Seniority Pay and Allowances) Rules, 1965

17. Gist of case:

One Vela Keshav was appointed by Okha Gram Panchayat as Safai Kamdar in the year 1964. He

was appointed under a Resolution passed by the Panchayat. Admittedly, he was not appointed

following the procedure laid down under Section 203 of the Gujarat Panchayats Act, 1961. On

the death of Vela Keshav, his widow submitted an application for retiral benefits and family

pension. District Panchayat Officer as well as the State said that since Vela Keshav was not

appointed by the District Panchayat Selection Committee constituted under Section 211 of the

Gujarat Panchayats Act, 1961, and since he was not a member of the Panchayat service as

envisaged under Section 203(1) of the Gujarat Panchayats Act, 1961, he was not entitled to

claim parity with the Government servants. Hence, he was not entitled to get the benefit of

Gujarat Panchayat Service (Pension) Rules, 1976 or Family Pension Scheme, 1972.

18. Operating part of judgment:



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The court said that the earlier decision by the learned judge was not justified wherein Gram

Panchayat was asked to pay pensionary benefits to Vela Keshav and family pension to his

widow by holding that under Section 203, read with Section 204 of the Gujarat Panchayats Act,

Panchayat has got a statutory obligation to pay pensionary benefits. Panchayat may give salary

and other benefits including Gratuity, Provident Fund etc. to persons like Vela Keshav,

appointed on the basis of resolutions passed by the Panchayat and not by following the

procedure laid down under Section 203 of the Gujarat Panchayats Act, 1961. Hence the appeal

was dismissed and connected Civil Applications were also disposed of.


Section 204 of the Gujarat Panchayats Act, 1961can only be applied to the officers and servants

of Panchayat service, who served for the time being under any panchayat and their

pay/allowances shall be met by the panchayat from its fund.

20. Obiter Dicta:

Mere fact that Panchayat has paid salary and other benefits to Vela Keshav does not mean that

he was a member of the Panchayat service so as to get the benefit available to members of

Panchayat service.



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VII. Bhalod Gram Panchayat and Anr. v. State of Gujarat and Ors.

1. State: Gujarat

2. Court: Gujarat High court (Ahmedabad)

3. Bench: Singe bench

4. Name of Bench: A.M. Ahmadi, J.

5. Case No.: 1986 GLH 53,

6. Name of the case: Bhalod Gram Panchayat and Anr. v. State of Gujarat and Ors.


8. Appellant: Bhalod Gram Panchayat and Anr.

9. Respondent: State of Gujarat and Anr.

10. Case types: Appeal(civil)


a. Whether the State Government can exercise power conferred upon it by Section 7A of the

Bombay Land Revenue Code to alter or to add to the limits of a village which has the effect of

altering the geographical limits of a gram panchayat without following the procedure outlined in

Section 9(2) of the Gujarat Panchayats Act, 1961?


The power conferred upon the State Government under Section 7A of the Bombay Land

Revenue Code was superseded or stands suitably amended/modified, by virtue of the provisions

contained in Section 9 of the Gujarat Panchayats Act, 1961.


14. Area of dispute: Others



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15. Area of dispute category: Dispute among Panchayats and between Panchayat and State

Agencies


Section 7A of the Bombay Land Revenue Code; Section 9(2) of the Gujarat Panchayats Act,

1961

17. Gist of case:

In this case the State Government passed an impugned order under Section 7A of the Bombay

Land Revenue Code merging the survey numbers on which the flood affected families were

settled in Rundh Gram Panchayat area into the local area of village Bhalod. The petitioners

contend that this order was passed by the Government ignoring the resolution passed by the

Bhalod Gram panchayat (not willing to the merger of the area).


The court said that Section 7A of Bombay Land Revenue Code empowers State Government to

alter or add to limits of any village but if that village happens to comprise the local area of any

Gram Panchayat, the alteration or addition to the limits of the village will directly affect the

limits of the local areas of the concerned panchayats. After the enactment of the Act, inclusion

within or exclusion from any gram any local area or the alteration of its limit must be made after

proper consultation as provided by Section 9(2) of the Gujarat Panchayats Act, 1961.Therefore,

the impugned order was quashed.


When the Government desires to exercise power under Section 7A of the Bombay Land

Revenue Code and the exercise of power affects the local limits of any panchayat or panchayats,

it must simultaneously resort to Section 9(2) of the Gujarat Panchayats Act, 1961 also. If it fails

to do so, its action would have to be struck down.



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20. Obiter Dicta:

Under Section 7 A of Bombay Land Revenue Code, village happens to comprise the local area

of any Gram Panchayat, the alteration or addition to the limits of the village will directly affect

the limits of the local areas of the concerned panchayats.



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VIII. Gujarat Pradesh Panchayat Parishad and Hiteshbhai Kantilal Barot v. State

Election Commission and Ors.

1. State: Gujarat

2. Court: Gujarat High court

3. Bench: divison bench

4. Name of Bench: M.S. Shah and D.H. Waghela, JJ.

5. Case No: Special Civil Application Nos. 10602 and 10603 to 10605 of 2005 and Civil

Application No. 9030 of 2005 in Special Civil Application No. 10602 of 2005

6. Name of the case: Gujarat Pradesh PanchayatParishad and Hiteshbhai Kantilal Barotv.

State Election Commission and Ors


8. Appellant: Gujarat Pradesh PanchayatParishad and Hiteshbhai Kantilal Barot

9. Respondent: State Election Commission and Ors

10. Case types: Writ petition


a. Whether the election process can be delayed beyond the time limit provided?

b. Whether the state government has discharged onus showing that necessary steps have been

taken for timely completion of the elections?

c. Whether, Writ Petition filed by Petitioners was maintainable?


In view of the constitutional mandate enshrined in Article 243E(3)(a) of the Constitution and

also in first proviso of Section 15(1) of the Gujarat Panchayats Act, 1993 the elections were



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required to be held before 5th/11th October 2005 or even earlier and, therefore, a writ of

mandamus or at least interim directions were called for.


• State of Maharashtra v. Jalgaon Municipal Council, (2003) 9 SCC 731

• Dr Narayan BhaskarmKhare v. Election Commission of India, AIR 1957 SC 694 : 1957

SCR 1081

• R.C. Poudyal v. Union of India, 1994 Supp. (1) SCC 324

• AC Jose v. Sivan Pillai, AIR 1984 SC 921

14. Area of dispute name: Election

15. Area of dispute category: Postponement/Re-election


Sections 7(1), 10, 11, 15, 15(1), 16, 18, 19, 20,21,22,23, 257, 264, 264(1), 264(2) of the Gujarat

Panchayat Act, 1993; Societies Registration Act, 1860; Section 266B of the Gujarat

Municipalities Act, 1963; Article 51, 54, 56(1), 60, 62(1), 71,71(4), 82, 83, 143U, 170, 172, 226,

243, 243B, 243C, 243E(3), 243K, 243K(2), 243O, 243P, 243T, 243U, Constitution of India -

Article 243U(3), 243ZG, 324 of the Constitution of India; Section 7A of the Bombay Provincial

Municipal Corporations Act, 1949 Section 13(3) of the Punjab Act, 1979; The Gujarat Taluka

and District Panchayats Elections (Manner of Allotment of Reserved Seats by Rotation) Rules,

1994; Land Revenue Code

17. Gist of case:

In this case the Gujarat Pradesh Panchayat Parishad reminded the respondent-authorities of their

duty to hold timely elections to Panchayats. The Minister for Panchayats of the State

Government replied that the Principal Secretary was being instructed to take the necessary

action.



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On 21.4.2005 there were newspaper reports in two leading Gujarati dailies that the Government

will hold elections to Municipal Corporations and Panchayats in September 2005 within the time

limit. However, all of a sudden on 11.5.2005, there was another newspaper report about

uncertainty in holding elections as the State Election Commission was not informed to

commence the process.

The petitioners accordingly moved these petitions on 22.5.2005 for a writ of mandamus to direct

the State Election Commission to complete elections to district panchayats and taluka

panchayats in the State, within September 2005.


The court said that it is the duty to hold election on time, however, no explanation came from the

State Government for its inaction since passing of notification till petitions were filed and the

notice was issued by this court. It was only thereafter that the State Government contended that

permission of Delimitation Commission was required to be obtained for readjustment of

boundaries of constituencies. Hence, the State Government did not discharge the onus.

Regarding the maintainability of the writ petition, the court held that the Petitioners had

requested State Government to take all necessary steps for timely completion of elections to

panchayats. Further, Minister for Panchayats replied that necessary instructions were given to

Principal Secretary, Panchayats Department and there were newspaper reports that elections

would be completed in time. Moreover, it was only when some uncertainty regarding timely

election was raised that the petitioners moved to Court Thus, there was no delay on part of

Petitioners. Hence, Writ Petition was maintainable.

The court also said that provisions of Section 16(4) and 18 of the Gujarat Panchayats Act, 1993

specifically provided that altering limits of any territorial constituency and revision of voters list

for an electoral division could not take place at any time within two months before expiry of

duration of panchayat. Even the provisions of Gujarat Panchayats Act, 1993 provided so.

Hence, any notification issued after 8th August 2005 purporting to alter limits could not have any

legal sanctity for the purpose of holding elections.

The petitions were accordingly allowed.



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Article 243E(3)(a) of the Constitution and also the first proviso of Section 15(1) of the Gujarat

Panchayats Act, 1993 makes it mandatory that the elections are held on time.

20. Obiter Dicta:

The constitutional duty to hold elections before expiry of the time limit is so mandatory and

peremptory that heavy burden lied on any person or authority justifying non-compliance with the

time limit or requesting for not issuing a writ of mandamus for timely completion of elections.



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IX. Kalidas Karsanbhai Chavda v. Vadodara Jilla Panchayat Elections

1. State: Gujarat



4. Name of Bench: A.N. Surti, J.

5. Case No: Spl. Civil Appln. No. 95 of 1981

6. Name of the case: KalidasKarsanbhaiChavdav. Vadodara Jilla Panchayat Elections


8. Appellant: Kalidas Karsanbhai Chavda

9. Respondent : Vadodara Jilla Panchayat Elections

10. Case types: Election petition


Whether the mentioning of the name of the scheduled caste that the person belongs to in the

nomination paper is necessary?


There is no provision in the Gujarat Panchayats Act, 1961 which provides a statutory obligation

on the contesting candidate to mention the name of the scheduled caste in the nomination paper

which he fills in.


• Shri V.V. Giri v. DippalaSuri Dora and Ors.

• Patel KanchanbhaiMangalbhai and Anr. v. ManeklalMaganlal Gandhi and Ors.

• Commissioner of Agricultural Income Tax, Bengal v. Sri Keshab Chandra Mandal



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216

• C.A. Abraham, Uppoottil, Kottayam v. The Income Tax Officer, Kottayam and Anr.

• Nanhoo Mal and Ors. v. Hira Mal and Ors.

• K.K. Shrivastava and Ors. v. Bhupendra Kumar Jain and Ors.

14. Area of dispute name: Election

15. Area of dispute category: Nomination


Section 323 of the Gujarat Panchayats Act, 1962; Rules 12, 15 of the Gujarat Taluka and District

Panchayat Election Rules 1975; Constitution of India - Article 226

17. Gist of case:

The Petitioner was aggrieved by the order passed by respondent No. 1, the Returning Officer

who rejected his nomination paper for the election. The grievance of the petitioner was that his

nomination paper was rejected on the ground of omission to mention the name of the scheduled

caste to which he belongs. At that relevant time, there were only two contesting candidates and

as the nomination paper of the Petitioner was rejected, respondent No. 2 was declared elected as

an uncontested candidate.


The court said that the omission to mention the name of scheduled caste to which the petitioner

belonged to was a technical error and not of a substantial character. Such a technical error in the

best interest and furtherance of the democratic set up at all levels in our country should not

defeat the right of the Petitioner to contest the election. The error in law committed by the

Returning Officer was manifestly and apparently on the face of the record which has resulted in

the denial of the right of the petitioner to contest the election.The impugned order passed by the

returning officer was rejected and the court declared that respondent No. 2 is not a validly

declared successful candidate for the election in question. The court directed for fresh election.

Hence, the petition was allowed.




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The right to contest the election is an extremely valuable right, and such a right cannot be denied

to any citizen particularly, when the Returning Officer failed to discharge his statutory functions

as provided in Rule 15 (2) of the Rules.

20. Obiter Dicta:

The omission to mention the name of scheduled caste to which the petitioner belonged was a

technical error and not of a substantial character.



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218

X. Modi Ramsingbhai Madhavbhai v. Bhabhar Nagar Panchayat and Anr.

1. State: Gujarat



4. Name of Bench: N.J. Pandya, J.

5. Case No: 1993 GLH 1 (216)

6. Name of the case: Modi Ramsingbhai Madhavbhai v. Bhabhar Nagar Panchayat and

Anr.


8. Appellant: Modi Ramsingbhai Madhavbhai

9. Respondent: Bhabhar Nagar Panchayat and Anr.

10. Case types: Appeal


Whether the state government should pay pension, retirement benefits, gratuity to the petitioner?


The retirement benefits, pension should be paid as the employees of the panchayat became state

government employees irrespective of their original position.


• State of Gujarat and Anr.vs. Raman LalKeshavLalSoni and Ors.

14. Area of dispute: Others

15. Area of dispute category: Pension




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Section 24 of the Gujarat Panchayats Act, 1961

17. Gist of case:

The petitioner was originally employed with respondent No. 1-Panchayat as an Engine Driver.

At the relevant time, respondent No. 1-Panchayat was being governed by the then Bombay

Village Panchayat Act, 1958 which came to be substituted by the Gujarat Panchayat Act, 1961.

The petition has been filed with a prayer that the petitioner may be paid pension, gratuity and

other retirement benefits which were due to him right from the date of his retirement.


The court said that Section 24 of the Gujarat Panchayats Act, 1961, provided that pay and

allowances and other benefits available to an Officer or a servant of Panchayat Service serving

for the time being under any Panchayat, shall be met by that Panchayat from its own fund. The

above position has been changed by the Supreme Court in State of Gujarat v. Ramanlal

Keshavlal Soni wherein it was provided that employees of a given Panchayat will become State

Government Employees irrespective of their original position.

Accordingly, the petition was allowed. The respondents were directed to pay pension, gratuity

and other retirement benefits,


The employees of a given Panchayat will become State Government Employees irrespective of

their original position




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220

STATE OF HIMACHAL PRADESH

I. Angdui Norbu and Ors. v. State of Himachal Pradesh and Ors.

1. State: Himachal Pradesh

2. Court: High Court

3. Bench: Division Bench

4. Name of the Bench: Kurian Joseph, C.J. and V.K. Sharma, J.

5. Case Number: CWP No. 2680 of 2011

6. Name of the case: Angdui Norbu and Ors. v. State of Himachal Pradesh and Ors.


8. Appellant: Angdui Norbu and Ors.

9. Respondent: State of Himachal Pradesh and Ors.

10. Case Type: Writ Petition (Civil)

11. Main Law Points Involved: a) Is there any outer time-limit fixed in Act and Rules for an

elected member of Panchayat Samiti to enter office by taking oath or making affirmation? If the

answer is in affirmative, what are the consequences of elected members not entering office

within outer time thus fixed in statutes?

b) What is the quorum of Panchayat Samiti for a special meeting, for election of Chairman and

Vice Chairman? Is it two-third of members elected and entered office by taking oath or making

affirmation or is it two-third of membership of elected members of Panchayat Samiti?

c) Whether an election petition would lie in the present case?



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a. Outer time-limit fixed in Act and Rules for an elected member of Panchayat Samiti to enter

office by taking oath or making affirmation

b. Quorum of Panchayat Samiti for a special meeting, for election of Chairman and Vice

Chairman

13. Reference taken from cases :

• Hunter Surinder Singh Banolta v. State of H.P. and others, 1970 (44) ALJ 257

• Ittianam v. Cherichi, (2010) 8 SCC 612



16. Provisions of Law involved: Himachal Pradesh Panchayati Raj Act, 1994 - Section 77,

Himachal Pradesh Panchayati Raj Act, 1994 - Section 78, Himachal Pradesh Panchayati Raj Act,

1994 - Section 80, Himachal Pradesh Panchayati Raj Act, 1994 - Section 127, Himachal Pradesh

Panchayati Raj Act, 1994 – Section 146, Himachal Pradesh Panchayati Raj Act, 1994 - Section

159, Himachal Pradesh Panchayati Raj Act, 1994 - Section 162, Himachal Pradesh Panchayati

Raj Act, 1994 - Section 163, Himachal Pradesh Panchayati Raj Act, 1994 - Section 165,

Himachal Pradesh Panchayati Raj Act, 1994 - Section 174, Himachal Pradesh Panchayati Raj

Act, 1994 - Section 175; Constitution of India - Article 40, Constitution of India - Article 226,

Constitution of India - Article 243C, Constitution of India - Article 234O; Oaths Act, 1869 ;

Himachal Pradesh Panchayati Raj (Election) Rules, 1994 - Rule 85


Election to the 15 wards of Kaza Panchayat Samiti was held. Two days later the authorized

officer issued notice to the newly elected members of the Panchayat Samiti for oath or

affirmation. On the scheduled day only members (6 Petitioners and one another member) took

oath and others did not even attend the meeting. The authorized officer fixed another day as the

next date of meeting and later the Authorised Officer fixed a date as the date for administering



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oath to the remaining members and for election of Chairman and Vice Chairman. Except the 7

members who had already taken oath, nobody else turned up and hence the meeting was

thereafter adjourned multiple times. Later the Authorised Officer administered the oath to six

more members. According to the private Respondents, who had taken oath on a later date, on

account of bad weather condition, blockade of road, disruption of communication system and

personal difficulties, they could not take oath earlier and they had given due intimation as per

their letters. It is also the contention of the private Respondents as well as the State that the

Petitioners have the remedy only by way of election petition and no effective relief can be

sought under Article 226 of the Constitution of India.


The court held that the writ petition was maintainable. Under Rule 85 of the H.P. Panchayati Raj

(Election) Rules, 1994, it was mandated that the Deputy Commissioner or the authorised officer

shall fix a date of meeting for the purpose of taking oath or making affirmation as required under

Section 127 of the Himachal Pradesh Panchayati Raj Act, 1994, not later than one week of the

declaration of the result as per Section 79 of the Act. Until and unless, a quorum of ten is not

constituted for Kaza Panchayat Samiti, there cannot be an election of Chairman or Vice

Chairman. It was instructed by the court that steps shall be taken to conduct election forthwith to

the 8 vacant seats in Kaza Panchayat Samiti. The process shall be completed at any rate within

60 days. Within 7 days thereafter, such newly elected members shall be administered oath of

office and immediately thereafter election to the post of Chairman and Vice Chairman shall be

conducted.


In case the law has prescribed an outer limit to a time period and such limit is clear and

unambiguous, no authority can extend the time period beyond such stipulation. The election of

the elected member would be deemed invalid if he did not enter the office within seven days of

declaration of result and steps would have to be taken for fresh election.

The Panchayat can be constituted only when the elected members having right to vote are

otherwise available for being invited to participate in the meeting for election of Chairman under

Article 243C(5) of the Constitution of India and Chairman and Vice Chairman under Section 79



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of the Act. In the case of any such vacancy, steps should be taken under the Act to immediately

hold election and then constitute Panchayat Samiti and thereafter only the election to the office

of Chairman and Vice Chairman can be conducted.

20. Obiter Dicta:

The whole purpose of constitution of Panchayats, be it at village level or intermediate level, is to

set up vibrant democratic units of self governance. Unlike other elected bodies at the Centre or

State level, where the purpose is also to legislate and to form a government, in the case of

Panchayats, it is only self-governance at the grass-root level. Once the equilibrium of ‘all the

people and by all the people’ is lost, then the institution would cease to be a democratic

institution.



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II. Chet Ram Bharti v. State of H.P. and Others




4. Name of the Bench: Hon'ble V.K. Ahuja, J.

5. Case Number: C.W.P. No. 1415 of 2008

6. Name of the case: Chet Ram Bharti v. State of H.P. and Others


8. Appellant: Chet Ram Bharti

9. Respondent: State of H.P. and Others


11. Main Law Points Involved: Whether the Petitioner was entitled to pray for a relief through

a writ of Quo Warranto to be issued for declaring Respondent No. 4 as a usurper of public office

of Pradhan of the village.

12. Grounds of Challenge: Petitioner’s right to pray for a relief through a writ of Quo Warranto

to be issued for declaring Respondent No. 4 as a usurper of public office of Pradhan of the

village

13. Reference taken from cases :

• S. Nagarajan v. District Collector Salem and others: AIR 1997 SC 935;

• Kumari Madhuri Patil and another v. Additional Commissioner Tribal Development and

others: (1994) 6 SCC 241;



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225

• Pankaj Kumar Saha v. The Sub-Divisional Officer, Islampur and others: AIR 1996 SC

1728;

• Surinder Singh Banolta v. State of H.P. and others Latest HLJ 2003 (HP) 782;

• State of H.P. and others v. Surinder Singh Banolta: (2006) 12 SCC 484


15. Area of Dispute Category: Eligibility of candidates

16. Provisions of Laws Involved: Himachal Pradesh Panchayati Raj Act, 1994 - Section 122,

Himachal Pradesh Panchayati Raj Act, 1994 - Section 122(1), Himachal Pradesh Panchayati Raj

Act, 1994 - Section 122(2), Himachal Pradesh Panchayati Raj Act, 1994 - Section 146,


Act, 1994 - Section 163; Constitution of India - Article 226, Constitution of India - Article 227,

Constitution of India - Article 341, Constitution of India - Article 342


In the elections for the post of Pradhan of Gram Panchayat Jagatsukh, it was alleged by the

petitioner that the seat was reserved for the scheduled caste candidate. Respondent number 4 was

elected to the post but it was alleged that he did not belong to scheduled caste and hence should

be declared a usurper to public office. A preliminary inquiry was conducted and a report was

submitted by the Additional District Magistrate, Kullu. On the basis of the said report

Respondent No. 2 issued a letter to proceed further under Section 146(1) of the H.P. Panchayati

Raj Act, 1994. Respondent No. 3 issued a show-cause notice to respondent No. 4 regarding

submission of a false certificate and as to why action should not be taken against him under

Section 122 and 146 of the Panchayati Raj Act, 1994. Respondent No. 4 filed a civil writ petition

wherein a stay was granted and respondent No. 2 withdrew the show-cause notice illegally. It

was alleged by the petitioner that withdrawal of the show-cause notice was illegal and mala fide

and since the petitioner could not file any election petition after two years, therefore, he filed a

complaint on which the proceedings were initiated as against respondent No. 4. Hence, the

petition is filed by the petitioner challenging the withdrawal of the show-cause notice and



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praying for a declaration that the election of respondent No. 4 at the post of Pradhan be held

invalid and fresh election may be ordered to be held by respondent No. 3.


The writ petition was dismissed and it was held that the petitioner was not entitled to the relief

claimed by him that a show-cause notice be not quashed or that the post of Pradhan be declared

as vacant. The respondent had the disqualification on the date he contested the election and the

only question is that these facts came to the knowledge of the petitioner after he was declared

elected. In such circumstances, he could still file an election petition taking grounds for

condonation of delay from the date of the knowledge, which question could have been

considered by the Deputy Commissioner in the election petition to be filed before him. The

disqualification had not been earned by respondent No. 4 subsequently, but it was, existing from

the very first date when he contested the election and according to the decision of this Court in

Surinder Singh Banolta v. State of Himachal Pradesh (also upheld by the Hon’ble Apex Court)

it has to be challenged by way of election petition and not by way of issuance of show-cause

notice as was done in the present case.


In case the allegation of encroachment relates to the period of time before the election process

has started, election of any person chosen as such can be called in question only through an

election petition and not otherwise.




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III. Swarna Devi v. State of Himachal Pradesh




4. Name of the Bench: Sh. Deepak Gupta and Sh. V.K. Ahuja, JJ.

5. Case Number: LPA No. 13 of 2009

6. Name of the case: Swarna Devi v. State of Himachal Pradesh


8. Appellant: Swarna Devi

9. Respondent: State of Himachal Pradesh

10. Case Type: Election Petition

11. Main Law Points Involved: Whether a person, who has applied for regularization of

encroachment of land can be deprived of his right to fight an election under the provisions of

Himachal Pradesh Panchayati Raj Act, 1944?

12. Grounds of Challenge: Whether a person, who has applied for regularization of

encroachment of land can be deprived of his right to fight an election under the provisions of

Himachal Pradesh Panchayati Raj Act, 1944?

13. Reference taken from the cases:

• Kartar Chand v. State of H.P. and others Latest HLJ 2009 (HP) 1187



16. Provisions of Laws Involved: Himachal Pradesh Panchayati Raj Act, 1944; Himachal

Pradesh Panchayati Raj Act, 1994 - Section 122, Himachal Pradesh Panchayati Raj Act, 1994 -



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Section 122(1); Himachal Pradesh Regularization of Encroachments (in Certain Cases) on

Government Land and Disposal of Government Land Rules, 2002; Regularization of

Encroachment Rules


In the present case, the petitioner submitted the nomination paper for 34-Gummer Constituency

of Zila Parishad Kangra. Respondent No. 7 filed an application praying that the nomination

paper of the petitioner be rejected mainly on the ground that the husband of the petitioner had

encroached upon the Government land and, therefore the nomination paper of the petitioner are

liable to be rejected. The petitioner filed an Election Petition before the Deputy Commissioner,

Kangra, in which she claimed that neither she nor her husband had encroached upon

Government land. It was also claimed that her husband had not filed any application for

regularization. However two witnesses appeared and stated that the husband of the petitioner,

had applied for regularization of the Government land and that they had also put their signatures

on the said application. All the authorities below including the learned Single Judge came to the

conclusion that the husband of the petitioner had applied for regularization of the encroachment

and, therefore, a presumption arose that he was an encroacher upon the Government land.


The appeal was dismissed. It was held that a person who has been convicted of any offence

involving moral turpitude cannot contest elections for a period of six years from the date of his

conviction.


Section 12 (c) of the Himachal Pradesh Panchayati Raj Act, 1994 provides that no person who

or whose family members have encroached upon the Government land should be permitted to

contest an election to the Panchayat. There can be no dispute with the proposition that persons

who hold public or elected offices should be above board. Probity and transparency of public

officials is necessary to maintain our democracy. Any effort by the State to ensure that persons

who have grabbed public property or persons with criminal background are ineligible to fight



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elections should be lauded and in such cases, a more purposive interpretation should be given so

that the purpose behind making such laws is achieved.




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IV. Duni Chand v. State of Himachal Pradesh & Ors.




4. Name of the Bench: Rajiv Sharma and Sureshwar Thakur, JJ.

5. Case Number: CWP No. 5117 of 2013

6. Name of the case: Duni Chand v. State of Himachal Pradesh & Ors.


8. Appellant: Duni Chand

9. Respondent: State of Himachal Pradesh & Ors.

10. Case Type: WP

11. Main Law Points Involved: Whether the order setting aside Petitioner’s election to the post

of Pradhan of the Gram Panchayat, on the grounds of being encroacher to government land, was

sustainable?

12. Grounds of Challenge: Sustainability of the order setting aside Petitioner’s election to the

post of Pradhan of the Gram Panchayat, on the grounds of being encroacher to government land

13. Reference taken from the cases: None



16. Provisions of Laws Involved: Himachal Pradesh Panchayati Raj Act, 1994 - Section 122,


Act, 1994 - Section 122(1)(c), Himachal Pradesh Panchayati Raj Act, 1994 - Section 164,




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231

Act, 1994 - Section 175, Himachal Pradesh Panchayati Raj Act, 1994 - Section 175(1)(a),

Himachal Pradesh Panchayati Raj Act, 1994 - Section 175-A


The petitioner was elected as Pradhan of the Gram Panchayat, Ghanala, Sub Tehsil Sandhol,

District Mandi, H.P. His election was subsequently set aside. When the petitioner filed

nomination papers for contesting elections, respondent No. 4 filed a objection with the Assistant

Returning Officer (Election) divulging therein that due to the existence of an ejectment order

from government land the nomination papers of the petitioner are liable to be rejected. However,

the same was overlooked by the Assistant Returning Officer and the petitioner was elected as

Pradhan of the Gram Panchayat. An election petition was filed by respondent No. 4 challenging

the election of the petitioner under Section 122(1)(c) and 175 of the Himachal Pradesh

Panchayati Raj Act, 1994. The ejectment order from government land was challenged by the

petitioner before the Sub Divisional Officer. The latter officer, before whom the petitioner had

challenged the order of his eviction/ejectment from government land, came to accept the appeal

preferred by the petitioner against the impugned order of ejectment. Besides, during the

pendency of the appeal, the Sub Divisional Officer orally submitted to have stayed the operation

of order of his ejectment from government land. The election petition as instituted before the

Sub Divisional Officer by respondent No. 4, against the petitioner, sequeled an adverse decision

to the petitioner, in as much, as, the election petition came to be accepted and the election of the

petitioner as Pradhan of Gram Panchayat, Ghanala, was set aside. The petitioner, subsequently

instituted an appeal before the Appellate Authority. The Appellate Authority dismissed the

appeal preferred by the petitioner. Hence it affirmed the orders of the Sub Divisional Officer

allowing the election petition filed by respondent No. 4, challenging the election of the petitioner

to the post of Pradhan. Resultantly, the petitioner filed the instant petition before the Court,

wherein, he prayed that the impugned orders be set aside.


The Hon’ble High Court observed that at the time the Petitioner aspired to be elected to post,

there was preceding order, declaring the Petitioner to be encroacher upon Government land.

Thus, Petitioner had earned disqualification prescribed under Section 122(1)(c) of Himachal



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Pradesh Panchayati Raj Act, 1994. Hence, the order of setting aside Petitioner's election was

sustainable. Consequently, the petition was dismissed.


The provisions of Section 175(1)(a) of the Himachal Pradesh Panchayati Raj Act, 1994, cannot

be read in a manner so as to contradict the provisions of Section 122 of the Act, or in a manner

so as to validate the filing of nomination papers by the petitioner, when at the stage of his

aspiring to be chosen or being elected to the office of Pradhan of Gram Panchayat, he had earned

a disqualification as prescribed under the provisions of sub section 1(c) of Section 122 thereof. A

purposive and meaningful connotation should be lent to both so that they are not rendered

mutually exclusive. Hence, clear and unambiguous meaning of Section 122(1)(c) of Act barred

and disqualified Petitioner from being chosen in election to the post concerned.

20. Obiter Dicta: --



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V. Ram Kishan Rohal v. State of Himachal Pradesh & Ors.




4. Name of the Bench: S.N. Phukan, C.J., R.L. Khurana, J.

5. Case Number: Civil W.P. No. 2634 of 1995

6. Name of the case: Ram Kishan Rohal v. State of Himachal Pradesh & Ors.


8. Appellant: Ram Kishan Rohal

9. Respondent: State of Himachal Pradesh & Ors.


11. Main Law Points Involved: Whether Article 243D (4) and also Section 125 Himachal

Pradesh Panchayati Raj Act, 1994 is ultra vires the Indian Constitution?

12. Grounds of Challenge: Constitutionality of Article 243D (4) and also Section 125

Himachal Pradesh Panchayati Raj Act, 1994




16. Provisions of Laws involved: Himachal Pradesh Panchayati Raj Act, 1968 ; Himachal

Pradesh Panchayati Raj Act, 1969 ;Constitution (Seventy-third Amendment) Act, 1992

;Himachal Pradesh Panchayati Raj Act, 1994 – Section 125, Himachal Pradesh Panchayati Raj

Act, 1994 – Section 200, Himachal Pradesh Panchayati Raj Act, 1994 – Section 200(2);

Himachal Pradesh Panchayati Raj (Election) Rules, 1994 – Rule 32; Constitution of India –



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234

Article 14, Constitution of India – Article 32, Constitution of India – Article 226, Constitution of

India – Article 243, Constitution of India – Article 243D, Constitution of India – Article

243D(4), Constitution of India – Article 243E, Constitution of India – Article 243N


In the writ petition filed under Article 226 of the Constitution, the Petitioner prayed for an

appropriate writ for quashing the resolution passed by the Himachal Pradesh Vidhan Sabha and

consequently the notification dissolving the Panchayats and also challenged the validity of

Section 125 of the Himachal Pradesh Panchayati Raj Act, 1994 in respect of the reservation of

posts of Chairmen in the Panchayats on the ground that it violates Article 14 of the Constitution.

The main grievance of the Petitioner was that under the Himachal Pradesh Panchayati Raj Act,

1969 the elections were held to Gram Panchayats and the Panchayat Samitis in January 1992 and

the term for the said Panchayats would expire in February 1997, but these Panchayats were

dissolved in pursuance of the Resolution passed by the Vidhan Sabha by Notification in

November, 1995, before expiry of the said term. It has also been alleged that earlier there were

only Gram Panchayats and Panchayat Samitis, but by the Act of 1994, another Panchayat,

namely, Zila Parishads were constituted and these Panchayats could have been constituted by the

election from the members of the then existing Panchayats without dissolving these Panchayats.

The petitioner also urged that reservation of offices of Chairpersons in the Panchayats for

Scheduled Castes, Scheduled Tribes and women is arbitrary as such reservation comes to 134%

and according to the law laid down by the Apex Court, reservation can be made upto 50% and

that such reservation cannot be made for elected posts


The Section of 125 of the Act of 1994 had been incorporated keeping in view the Constitutional

provision as contained in Clause (4) of Article 243D of the Constitution of India. As the

notification dissolving the two Panchayats in the State was a consequence of the said resolution

of the Assembly and in accordance with the proviso to Article 243N of the Constitution, it

cannot be said to be illegal. Regarding Constitutional validity of the said Clause (4) of Article

243D of the Constitution of India, nothing had been averred in the present writ petition. Hence,

the writ petition was dismissed by the High Court.



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235


The Hon’ble High Court observed that the power of the State Legislature to pass a Resolution

dissolving the existing Panchayats is a Constitutional provision and, therefore, it cannot be

disputed. Chapter IX of the Constitution was inserted by the Constitutional Amendment Act,

1992 and thereafter Act of 1994 was enacted creating three tier Panchayats in the State. If the

intention of the Legislature is to give effect to the mandate of the Legislature, as provided in the

Act of 1994, the Court cannot interfere as it is a policy decision. The court did not find any merit

in the contentions raised and held that there was no arbitrariness in dissolving the two

Panchayats in order to enable people to choose their own representatives- a necessary aspect of

our democratic set up.

20. Obiter Dicta:

Himachal Pradesh Panchayati Raj Act, 1994 is not an amendment of any existing law regarding

the Panchayats.



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VI. Bala Ram v. State of Himachal Pradesh and Ors.




4. Name of the Bench: C.K. Thakker, C.J. and A.K. Goel, J.

5. Case Number: Civil Writ Petition No. 443 of 2001

6. Name of the case: Bala Ram v. State of Himachal Pradesh and Ors.


8. Appellant: Bala Ram

9. Respondent: State of Himachal Pradesh and Ors


11. Main Law Points Involved: Whether the action of the Respondent-authorities in not

placing the Respondent No. 5 under suspension by invoking the provisions of Section 145 of the

Act is clearly illegal and unlawful?

12. Grounds of Challenge: Legality of the action of the Respondent-authorities in not placing

the Respondent No. 5 under suspension by invoking the provisions of Section 145 of the Act


• State of U.P. v. Jogendra Singh: AIR 1963 SC 1618;

• Thomas The illusson Carter (1880) AC 214


Challenge of validity of Section 145 of Himachal Pradesh Panchayati Raj Act, 1994 and Article

20(2) of Constitution of India



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237


16. Provisions of Laws Involved: Uttar Pradesh Disciplinary Proceeding (Administrative

Tribunal) Rules, 1947 ;Indian Penal Code (IPC) - Section 147, Indian Penal Code (IPC) -

Section 148, Indian Penal Code (IPC) – Section 149, Indian Penal Code (IPC) - Section 302,

Indian Penal Code (IPC) - Section 342; Constitution of India - Article 20, Constitution of India -

Article 226; Himachal Pradesh Panchayati Raj Act, 1994 - Section 122, Himachal Pradesh

Panchayati Raj Act, 1994 - Section 122(1), Himachal Pradesh Panchayati Raj Act, 1994 -

Section 122(2), Himachal Pradesh Panchayati Raj Act, 1994 - Section 145, Himachal Pradesh

Panchayati Raj Act, 1994 - Section 145(1), Himachal Pradesh Panchayati Raj Act, 1994 -

Section 145(3), Himachal Pradesh Panchayati Raj Act, 1994 - Section 175


The Petitioner approached the Court by filing this petition under Article 226 of the Constitution

of India, his case being that an FIR was registered under Section 302 read with Sections 147,

148, 149 and 342 I.P.C. in which the name of Respondent No. 5 had also been shown as one of

the accused and subsequently a charge was framed for those offences and Respondent No. 5 was

also one of the accused. Later, Respondent No. 5 was elected as Pradhan of Gram Panchayat,

Gaich. The Petitioner submitted an application to the Director of Rural Development and

Panchayati Raj-Respondent No. 2 and Deputy Commissioner, District Shimla, Respondent No.3

not to administer oath of Pradhan to Respondent No. 5 and requested them to take appropriate

action against her in accordance with the Act, since she was involved in offences punishable

under Section 302 and other Sections of the I.P.C. Section 145 states that prescribed authority

may suspend from the office any office bearer against whom charges have been framed in

criminal proceedings under Section 302 and other sections mentioned in Clause(a). Since no

action was taken, the Petitioner was constrained to approach the Court by filing the present writ

petition.


The Court held that it cannot be said by the State authorities that since a competent criminal

court is seized of the matter, no action could be taken under Section 145 of the Act since the

object of criminal trial is different than the object under Section 145 or for that purpose 122 of



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the Himachal Pradesh Panchayati Raj Act. Also, suspending the Respondent under section 145

would not attract clause (2) of Article 20 of the Constitution as a person is not prosecuted and

punished twice for the same offence if an action is taken either under Section 145 or under

Section 122 of the Act. However, the court disallowed the prayer made by the Petitioner relating

to passing of order of suspension as the same could not be made subject matter of election

petition under Section 175 of the Act.Thus, the petition was partly allowed.


The object underlying two provisions (Sections 122 and 145) is different and they do not operate

in one and the same field. One provides penalty and is punitive in nature and the other is

preventive. The purpose for Section 145 and placing a person elected to a public office under

suspension is to prevent him/her in exercising powers and in discharging duties till the

proceedings initiated against him/her are over and finalized.Therefore section 145 is not punitive

and does not attract the provisions of Article 20(2) of the Constitution of India.

20. Obiter Dicta:

If the term ‘may’ in a statute is to be read as ‘may’ only, and the Prescribed Authority is left to

exercise the power at his sweet will, such provision may be held to be arbitrary and

unreasonable.



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VII. Manoj Kumar v. Lalita Devi and Ors.




4. Name of the Bench: M. Srinivasan, C.J. and L.S. Panta, J.

5. Case Number: Cr.M.P. (M) No. 816 of 1995

6. Name of the case: Manoj Kumar v. Lalita Devi and Ors.


8. Appellant: Manoj Kumar

9. Respondent: Lalita Devi and Ors

10. Case Type: Curative Petition (Criminal)

11. Main Law Points Involved: Whether in the face of the provisions of Sections 2(6) and

2(32) of the Himachal Pradesh Panchayati Raj Act, 1994 the cases under Section 125 of the

Criminal Procedure Code, which were pending on the date of coming into force of the Act

before Courts, are liable to be transferred to the Gram Panchayat in the absence of there being

any specific provision in the Act?

12. Grounds of Challenge: Legality of transferring the cases under Section 125 of the Criminal

Procedure Code, which were pending on the date of coming into force of the Act before Courts

to the Gram Panchayat in the face of the provisions of Sections 2(6) and 2(32) of the Himachal

Pradesh Panchayati Raj Act, 1994 in the absence of there being any specific provision in the Act


• Hari Devi v. Bhagat Singh and Anr., 1996(2) S.L.J. 1625;

• Shri Padam Singh v. Smt. Kanta, (1973) I.L.R. H.P. 993;



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• Shri Bhagwant v. Smt Shyam Devi, I.L.R. (H.P.) 1972, 245;

• Goverdhan Dass v. Smt. Bhagmatu and Anr., (1975) I.L.R. H.P. 127

14. Area of Dispute: Jurisdiction

15. Area of Dispute Category: Dispute over Territorial Jurisdiction of State/PRIs

16. Provisions of Laws Involved: Code of Criminal Procedure, 1973 (CrPC) - Section 125;


Act, 1995 - Section 2(32), Himachal Pradesh Panchayati Raj Act, 1995 - Section 32, Himachal

Pradesh Panchayati Raj Act, 1995 - Section 34, Himachal Pradesh Panchayati Raj Act, 1995 -

Section 35, Himachal Pradesh Panchayati Raj Act, 1995 - Section 67; Himachal Pradesh



The present case had come to the Hon’ble High Court of Himachal Pradesh by way of a

reference by a Single Judge of the same High Court. The question referred to is : “Whether in

the face of the provisions of Sections 2(6) and 2(32) of the Himachal Pradesh Panchayati Raj

Act, 1994 the cases under Section 125 of the Criminal Procedure Code, which were pending on

the date of coming into force of the Act before Courts, are liable to be transferred in the absence

of there being any specific provision in the Act ?”


Section 32(2) of the Himachal Pradesh Panchayati Raj Act, 1994 does not confer any exclusive

jurisdiction on Gram Panchayat. It had not affected in any manner any other law which provides

for any proceeding to be taken for grant of maintenance. The application for maintenance under

Section 125 is not a criminal case as contemplated by Section 35 of the said Act and the Judicial

Magistrate before whom proceeding under Section 125 of the Code of Criminal Procedure was

pending did not lose jurisdiction by virtue of passing of H.P. Panchayati Raj Act. Consequently

there was no necessity for transferring the said proceeding to Gram Panchayat. There was no

express provision in the Act taking away the jurisdiction of Judicial Magistrate or conferring

exclusive jurisdiction on Gram Panchayat. Also, there was no warrant to accept the contention



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that the Judicial Magistrate had no jurisdiction and that pending proceedings should be

transferred to the Gram Panchayat. The view expressed by Justice Vaidya in Hari Devi v.

Bhagat Singh & Anr.,(1996) 2 S.L.J. 1625 is not good law not only because the court took a

different view in this case but also because it ran counter to the decision of the Division Bench in

Goverdhan Dass v. Smt.Bhagmatu & Anr., I.L.R (1975) H.P. 127. With these findings, the Court

dismissed the petition.


The Judicial Magistrate before whom a proceeding under Section 125 of the Code of Criminal

Procedure is pending has not lost jurisdiction by virtue of the passing of the H.P. Panchayati Raj

Act No. 4 of 1994 and there is no necessity whatever for transferring the said proceeding to the

Gram Panchayat.

20. Obiter Dicta:

The expression ‘criminal case’ has to be understood in the light of the definitions contained in

Section 2 of the Himachal Pradesh Panchayati Raj Act.



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VIII. Matha v. Smt. Kaula




4. Name of the Bench: T.U. Mehta, C.J.

5. Case Number: Cr. M.P. (M) No. 239 of 1978

6. Name of the case: Matha v. Smt. Kaula


8. Appellant: Matha

9. Respondent: Smt. Kaula

10. Case Type: Curative Petition (Criminal)

11. Main Law Points Involved:

a. Whether the Nyaya Panchayat has jurisdiction to forward the order of maintenance to the Sub-

Divisional Judge for execution under Sub-section (2) of Section 242 of the Panchayati Raj Act,

because that sub-section contemplated the forwarding for the purpose of executing only a decree

and not an order?

b. Whether an order which is sought to be executed is passed under Section 488 of the Code of

Criminal Procedure, and the second proviso attached to Sub-section (3) of Section 488 would

come into play and, therefore, the amount of maintenance in arrears which is more than the

arrears of one year before the date of execution, cannot be realized by issuing a warrant?

12. Grounds of Challenge: Jurisdiction of the Nyaya Panchayat to forward the order of

maintenance to the Sub-Divisional Judge for execution under Sub-section (2) of Section 242 of

the Panchayati Raj Act, because that sub-section contemplated the forwarding for the purpose of

executing only a decree and not an order



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b. Legality of passing an order which is sought to be executed is passed under Section 488 of the

Code of Criminal Procedure


• Dhani Devi v. Tulsi Ram reported in 71 (1969) P.L.R. (Delhi Section) 189

14. Area of Dispute: Personal System

15. Area of Dispute Category: Related to power of Panchayats

16. Provisions of Laws Involved: Himachal Pradesh Panchayati Raj Act, 1968 - Section 3(1),


Act, 1968 - Section 203(2), Himachal Pradesh Panchayati Raj Act, 1968 - Section 230,


Act, 1968 - Section 242(1), Himachal Pradesh Panchayati Raj Act, 1968 - Section 242(2); Indian

Evidence Act, 1872 ;Limitation Act, 1963 ;Himachal Nyaya Panchayat Rules, 1972 - Rule 61,

Himachal Nyaya Panchayat Rules, 1972 - Rule 61(2); Constitution of India - Article 227; Code

of Criminal Procedure, 1898 (CrPC) - Section 397, Code of Criminal Procedure, 1898 (CrPC) -

Section 401, Code of Criminal Procedure, 1898 (CrPC) - Section 488, Code of Criminal

Procedure, 1898 (CrPC) - Section 488(3); Code of Civil Procedure, 1908 (CPC) - Section 2


The Respondent Smt. Kaula, claiming to be the wife of the Petitioner, filed an application for

obtaining maintenance for herself and her son under Section 488 of the Code of Criminal

Procedure, 1898. This application was filed before Nyaya Panchayat of the village under Section

203(2) of the Himachal Pradesh Panchayati Raj Act, 1968 as per which an application for

maintenance under Section 488 of the Code of Criminal Procedure was to be heard and decided

by the Nyaya Panchayat. As a result of this application, the Nyaya Panchayat ultimately awarded

maintenance for the Respondent-wife and her son. Thereafter the Respondent-wife filed

execution application to obtain the amount of maintenance in arrears, but since application was

not originally filed to the Panchayat, the same was dismissed.



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On the next execution application filed before the Nyaya Panchayat, a notice was issued to the

Petitioner-husband but he refused to accept the notice and the Nyaya Panchayat, finding it

difficult to execute its order of maintenance, forwarded the said order to the Sub-Divisional

judge for execution under Section 242 of the Panchayati Raj Act, 1968. The petitioner contended

before the Sub-Divisional Judge that the warrant in execution can be issued only for that amount

of maintenance which has become due for one year before the date of execution. The Sub-

Divisional Judge rejected this contention on the ground that the above referred second proviso

attached to Sub-section (3) of Section 488 of the Code of Criminal Procedure had no application

to the facts of the case in view of the provisions contained in Sections 203 and 230 of the

Panchayati Raj Act. Being aggrieved by this order, the Petitioner-husband preferred the present

application.


Once an order or decree was forwarded to Sub Divisional Judge for execution under Section

242(2) of the Act, the law specifically provides that such order or decree must be executed by

the said Sub Divisional Judge as if it were a decree passed by him. Order which was sent to Sub

Divisional Judge for execution should be treated as if it were a decree passed by him. It should

be executed as such. If it was so, Section 488(3) of Cr PC would have no application. Therefore,

the contention raised by the petitioner was rejected and the petition was dismissed by the

Hon’ble High Court.


The definition of the expression “Sub-Divisional Judge” clearly shows that every order passed

by a Nyaya Panchayat pursuant to the provisions contained in Section 230 of the Himachal

Pradesh Panchayati Raj Act, 1968 can be sent for execution to a Sub-Judge of the District or

Sub-Division who is working on the civil side. If the order of maintenance passed by the Nyaya

Panchayat under Section 488 of the Code of Criminal Procedure was to be treated merely as an

order passed in criminal proceedings, the legislature would not have provided for its execution

by a Sub-Judge.



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20. Obiter Dicta:

The procedure which is contemplated by Section 230 of the Panchayati Raj Act is of a special

type, and considering the functions of a Nyaya Pancha which is expected to dispense justice at

the grass root, it does away with the technicalities of legal procedure.



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IX. State of Himachal Pradesh and Anr v. Brahma Nand Sharma




4. Name of the Bench: R.B. Misra and Surjit Singh, JJ.

5. Case Number:

6. Name of the case: State of Himachal Pradesh and Anr v. Brahma Nand Sharma


8. Appellant: State of Himachal Pradesh and Anr

9. Respondent: Brahma Nand Sharma


11. Main Law Points Involved: Whether the Respondent, who was an employee of the

Panchayat Samiti, was entitled to pension and other retirement benefits?

12. Grounds of Challenge: Whether the Respondent, who was an employee of the Panchayat

Samiti, was entitled to pension and other retirement benefits?



15. Area of Dispute Category: Disputes among Panchayats and State Department Agencies

16. Provisions of the laws Involved: Section 150 of Himachal Pradesh Panchayati Raj Act,

1968



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The Respondent Brahma Nand was employed as a clerk by District Board, Kangra. Kangra

District was a part of Punjab upto 1966 and later merged with the Union Territory of Himachal

Pradesh. In the year 1962, when Kangra was still part of Punjab, an Act called the Punjab

Samitis and Zila Parishads Act, 1961, was passed, whereby District Boards were abolished.

Section 118 of the said Act provided that the staff of the abolished District Boards may be

transferred to Zila Parishads, Panchayat Samitis or may be retired or compensated as the

Government deemed fit. Services of respondent Brahma Nand, who was an employee of

abolished Kangra District Board, were allocated to Panchayat Samiti, Kullu, where he was

already working. He continued to work with the Panchayat Samiti, Kullu, until 1974, when he

retired on attaining the age of superannuation. He was paid a certain amount of money, on

account of gratuity. In 1968 after Kullu became part of Himachal Pradesh Union Territory, an

Act known as Himachal Pradesh Panchayati Raj Act, 1968, was passed and by virtue of that Act,

Zila Parishads were abolished. The staff of Zila Parishads, by virtue of Provision of Section 150

of the aforesaid Act of 1968, became the staff of the Government. However, Section 150 did not

cover the employees of the Panchayat Samitis. The petitioner, after superannuating in the year

1974, made a representation, claiming that he was an employee of Zila Parishad and by virtue of

the provision of Section 150 of the Act of 1968, he became a Government servant and as such he

was entitled to all the retiral benefits, available to Government servants, in accordance with the

provisions of CCS (Pension) Rules. In the alternative, he claimed that he was entitled to pension

even if his plea that he became a Government servant did not find favor. His representation was

rejected and then he filed an application. The Tribunal allowed the application and passed the

order to the aforesaid effect. Writ petitioners were aggrieved by this order of the Tribunal; their

main contention being that the respondent became a servant of Panchayat Samiti, after abolition

of the District Board and he continued to be a servant of such Samiti until superannuation.

Section 150 provided for the employees of Zila Parishads, which had been abolished by the said

Act, being treated as employees of the Government and it does not apply to the employees of

Panchayat Samitis.



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The court did not agree with this submission, because Sub-rule (2) of Rule 158 of the Himachal

Pradesh Panchayati Raj (General) Rules, 1975 provided for payment of gratuity only to the

employees of Panchayat Samitis and that too with the prior approval of the Director. Thus, the

Hon’ble court allowed the writ petition and set aside the impugned order of the Tribunal.

However, the Court also directed that pension or arrears of pension already paid to the

respondent, in compliance with the impugned order of the Tribunal, shall not be recovered, as

the respondent was a very old man, aged about 95 years.


The petitioner became an employee of the Panchayat Samiti after the abolition of the District

Board and since the employees of the Panchayat Samitis did not become the employees of the

Government, on account of passing of the Himachal Pradesh Panchayati Raj Act, and continued

to be the employees of the Panchayat Samitis, the respondent cannot claim that he was a

Government employee and entitled to pensionary and other retiral benefits in the same manner

and to the same extent as Government servants are.

20. Obiter Dicta:

Section 90 of the Himachal Pradesh Panchayati Raj Act 1968 provides for framing of Rules by

the Panchayat Samitis for grant of pension or subscription on their behalf for pension or gratuity

to the employees of the Panchayat Samitis, but it nowhere mandates that the employees of the

Samitis are to be paid pension or the rules in that behalf must be framed.



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X. Sarv Dayal v. State of Himachal Pradesh and Anr




4. Name of the Bench: V.K. Mehrotra and Bhawani Singh, JJ.

5. Case Number: Civil Writ Petition No. 408 of 1988

6. Name of the case: Sarv Dayal v. State of Himachal Pradesh and Anr


8. Appellant: Sarv Dayal

9. Respondent: State of Himachal Pradesh and Anr


11. Main Law Points Involved: Whether the order of suspension of the Petitioner from the post

of Pradhan of the Gram Panchayat was tenable?

12. Grounds of Challenge: Legality of the order of suspension of the Petitioner from the post

of Pradhan of the Gram Panchayat


• Parkash Chand v. State of H.P. and Anr. I.L.R. 1989 H.P referred



16. Provisions of Laws Involved: Himachal Pradesh Panchayati Raj Act, 1968 - Section 54(1);




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The Petitioner, Sarv Dayal, was elected as Pradhan of Gram Panchayat in the District of Kullu.

He was placed under suspension under Section 54(1) of the Himachal Pradesh Panchayati Raj

Act, 1968 by an order passed by the Deputy Commissioner, Kullu stating that in respect of some

alleged offences found to have been committed by the Petitioner, F.I.Rs had been made. Further,

inquiry had been made into these reports by the police that revealed that the Petitioner was,

prima facie, guilty of having made some interpolations in the allotment of timber. A show-cause

notice was given to the Petitioner but the reply of the Petitioner was not found to be satisfactory.

Consequently, the Petitioner was suspended with immediate effect from the office of the

Pradhan. Hence he filed the present writ petition against the order of his suspension.


The Hon’ble Court held that the order of suspension was liable to be quashed on the ground that

it did not contain any reason for placing the Petitioner under suspension. The order of

suspension must contain reasons as known to law and should disclose application of mind on the

part of the authority directing the suspension of a Pradhan to the facts of the case, on the basis

whereof the conclusion of placing the Pradhan under suspension is arrived at. Hence the writ

petition was allowed.


The order should disclose application of mind on the part of the authority, directing the

suspension of a Pradhan to the facts of the case on the basis whereof the conclusion of placing

the Pradhan under suspension is arrived at.

20. Obiter Dicta:

There need not be an elaborate discussion in the order of the various points raised by the

Pradhan, who is given notice to show cause why he should not be placed under suspension.



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XI. Sk. Nek Ram and Ors.v. State of Himachal Pradesh




4. Name of the Bench: Bhawani Singh, J.

5. Case Number: Second Appeal No. 112 of 1991

6. Name of the case: Sk. Nek Ram and Ors. v. State of Himachal Pradesh


8. Appellant: Sk. Nek Ram and Ors.


10. Case Type: Second Appeal


a. Whether the Plaintiffs are joint owners in separate and distinct possession of the suit land?

b. Whether the mutation showing Defendant as owner of the suit land is wrong and illegal and

not binding on the Plaintiffs?

c. Whether the Court has no jurisdiction to try the suit?

d. Whether the Plaintiff has become owner of the suit land by adverse possession?

12. Grounds of Challenge: Whether the Plaintiffs are joint owners in separate and distinct

possession of the suit land?

b. Whether the mutation showing Defendant as owner of the suit land is wrong and illegal and

not binding on the Plaintiffs?

c. Whether the Plaintiff has become owner of the suit land by adverse possession?



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• Gram Panchayat Ghaniara etc v. State Government ILR 1978 HP 225;

• Dalip Singh and Ors. v. State of H.P. and Ors. RSA No. 79/85

14. Area of Dispute: Property

15. Area of Dispute Category: Dispute over Ownership of Buildings and Land

16. Provisions of Laws Involved: Himachal Pradesh Village Common Lands Vesting and

Utilisation Act, 1974 - Section 3, Section 3(1), Section 3(2), Section 3(3), Section 3(5), Section

7, Section 8, Section 8(1), Section 12, Section 13; PunjabVillage Common Lands (Regulation)

Act, 1961 - Section 4; Punjab Reorganisation Act, 1966 -Section 5; Himachal Pradesh

Panchayati Raj Act, 1968 - Section 40; Code of Civil Procedure(CPC) - Section 80; Himachal

Pradesh Village Common Lands Vesting and Utilisation Rules,1975 - Rules 3, Rules 3(2), Rules

4, Rules 9.


The present appeal was directed against the judgment of District Judge, Solan whereby the

judgment of Senior Sub-Judge had been confirmed. The plaintiffs had filed a suit for declaration

to the effect that they are joint owners of a particular land situated in village Shaluminna,

District Solan, as per copy of Jamabandi and the land is separately possessed by the Plaintiffs at

the spot as per their shares in the Khewat and also that mutation attested in favour of the

Defendant behind their back is wrong, without jurisdiction and not binding on them. They also

contended that the land was never a shamlat land and could not vest in the State Government, so

a decree of declaration was sought against this vestment and that they had been paying the land

revenue to the Defendant and thus the Defendant be restrained from interfering with their

peaceful possession. In the alternative, they claimed to have become owners of the suit land by

adverse possession. The Defendant on the other hand contended that the suit land had never been

in the individual cultivation of the Plaintiffs and had rightly been vested in the Defendant and the

mutation to that effect was sanctioned in an open Ajlas. Thus the suit was not maintainable and

the court had no jurisdiction to try it.



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The Defendant was restrained from interfering with the possession of the Plaintiffs over the suit

land in any manner, otherwise than in accordance with law. It was held that the defendant was at

liberty to initiate proceedings as contemplated under Sub-section (5) of Section 3 of the

Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 and serve notice

thereof on the Plaintiffs who shall be at liberty to raise all such objections before the Collector

which are available to them and point out whether the land was vested or not and in case it was

vested, whether some of it stands exempted under Sub-section (2) of Section 3. The Collector

could decide these contentions after hearing the Plaintiffs in accordance with law. Till then,

relief by way of prohibitory injunction was given.


The Hon’ble High Court observed that the Rule 3 envisages that soon after the commencement

of Village Common Lands Act, Collector shall issue a notice under Sub-section (5) of Section 3

of Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 to landowner to

deliver possession of shamlat land vested in State Government under Sub-section (1) of said

section within 10 days from receipt of notice by him, and after possession of land is taken,

mutation in favour of State Government is to be recorded under Rule 4. Thereafter the Collector

shall cause a statement of such land prepared estate-wise in form ‘A’ through Tahsil Revenue

Officer for purposes of Section 8 of Act and Proviso to Sub-rule (2) of Rule 3 which mentions

that allotment of land to landless persons can be made before completion of this form and

demarcation of area earmarked for allot-able pool after ensuring minimum area for grazing and

other common purposes of inhabitants. Rule 9 envisages that if a dispute arises regarding entry

of land vested in State Government, Collector shall be competent to decide same after a

summary inquiry.

20. Obiter Dicta:

The Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (hereinafter

Common Lands Act) was passed with a view to provide for vesting and utilisation of village

common lands in the State of Himachal Pradesh. Section 8 thereof envisages that the common

lands vested in the State under Section 3 thereof should be utilised for grazing and other



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common purposes of the inhabitants of an estate as well as for allotment to a landless person or a

person whose holding is less than one acre to make his holding one acre.



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XII. Surat Ram etc. v. State of Himachal Pradesh




4. Name of the Bench: R.S. Pathak, C.J.

5. Case Number: Civil Writ Petition Nos. 93 and 132 of 1972

6. Name of the case: Surat Ram etc. v. State of Himachal Pradesh


8. Appellant: Surat Ram etc.



11. Main Law Points Involved: Whether the State Government has powers to split and

reconstitute Gram Sabhas under the Himachal Pradesh Panchayati Raj Act, 1968?

12.Ground of Challenge: Power of the State Government to split and reconstitute Gram Sabhas

under the Himachal Pradesh Panchayati Raj Act, 1968?




16. Provisions of Laws Involved: Himachal Pradesh Panchayati Raj Act, 1968 - Section 4(1);


Splitting and reconstitution of Gram Sabha by the State Government



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The Petitioners are members of the Gram Sabha, Mandhol which was established in 1954

formerly in the district of Mahasu and now in the district of Simla. The Petitioners state that the

inhabitants of the area constitute a compact community with common interests expressed in

social gatherings, common fairs and a common deity. It is also alleged that they have common

grazing rights and lands within the local limits of the Gram Panchayat. In the Writ Petition the

Petitioners plead that because they constituted a compact community there should be no division

of the community by the splitting up of the Gram Sabha into independent Gram Sabhas. It was

apparently apprehended that the State Government was proceeding to do so. The inhabitants of

the Sabha area represented against that move of the Government, but apparently to no avail. The

Government replaced the existing Gram Sabha by three new Gram Sabhas, those of Mandhol,

Nakrari and Kot. Aggrieved by this action of the Government the Petitioners then filed the

present writ petition, challenging the validity of the action of the Government.


The Hon’ble High Court observed that Section 4(1) of the Himachal Pradesh Panchayati Raj

Act, 1968, empowers the Government to declare “any village or group of contiguous villages

with a population of not less than five hundred and not more than five thousand to constitute one

or more Sabha Areas.” There is a proviso which excludes a Cantonment, Municipality or

Notified Area or Small Town Committee from being included in a Sabha Area. Nothing more is

provided to indicate the limits of the power of the Government in constituting a Sabha Area. The

only limitations expressed in Section 4(1) of the Act are (a) if more than one village is

constituted in a single Sabha Area they must be contiguous villages and (b) the population of the

village or group of villages should not be less than five hundred and not more than five

thousand. Beyond those two principles the matter has been left entirely to the administrative

discretion of the Government.

Hence, the High Court dismissed both the petitions.



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It is for the Government to judge whether the constitution of the Sabha Area is such as will

benefit the inhabitants of the Sabha Area. It may be open to the inhabitants of the area to

represent against a particular constitution of a Sabha Area, and that representation may lie before

a certain forum. That forum is not this Court exercising jurisdiction under Article 226 of the

Constitution.




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STATE OF JAMMU AND KASHMIR

I. Abdul Subhan Lone v. State of J&K &Ors.

1. State: Jammu And Kashmir

2. Court: High Court Of Jammu And Kashmir

3. Bench: Three Judge Bench ( Full Bench)

4. Name of Bench: M.M. Kumar, C.J. and Ali Mohd. Magrey, J.Case no.

5. Case Name: Abdul Subhan Lone v. State of J&K & Ors.

6. Case no.-LPA No. 200 of 2012 and IA No. 333 of 2012


8. Appellant: Abdul Subhan Lone

9. Respondent: State of J&K &Ors.

10. Case Type: LPA/IA


a) Whether the writ petition about the election of the appellant falls within the ambit of

Section 43 of the Act?

b) Whether the election held by draw of lots is in accordance with the provison or not?

c) Whether the submission placed by respondent no.8 on record of the petition as annexure


Whether the writ petition about the election of the appellant falls within the ambit of Section

43 of the Act? Whether the election held by draw of lots is in accordance with the provison

or not? Whether the submission placed by respondent no.8 on record of the petition as

annexure



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259




16. Provisions of Law Involved: Section 43 of the J&K Panchayati Raj Act, 1989

17. Gist of Case:

The case set up by the petitioner in the writ petition was that, after the counting process was

over, he was declared to have obtained 262 votes as against 261 votes obtained by the appellant

herein, and thus, he was declared successful by one vote. In proof of this submission, respondent

no. 8 has placed on record of the petition as annexure “B” photocopy of a document showing the

number of votes obtained by each of the participating candidates, bearing the signature of

Returning Officer as well as the Assistant Returning Officer. Thereafter, some unknown person,

accompanying the Returning Officer, declared that there was recounting of votes and that one of

the votes cast in favour of respondent no. 8 herein was invalid, reducing his number of votes to

261 and, therefore, a tie between the two competing candidates. The said stranger announced

that the winner would be decided by draw of lots, which, however, the appellant and respondent

no. 8, i.e., the two competing candidates, did not agree to. However, draw of lots was resorted to

and appellant was wrongly declared successful in violation of the law and rules governing the

subject. The writ petitioner, respondent no. 8 herein, filed an appeal before the Appellate

Authority in terms of Section 43 of the Act, but the appeal was dismissed by the Appellate

Authority. Hence, this Appeal was filed.


Section 43 of the Act makes it clear that an election dispute can be raised only on two grounds,

namely, (i) that the election has not been a free election by reason that the corrupt practice of

bribery or undue influence has extensively prevailed at the election; and (ii) that the result of the

election has been materially affected either by the improper acceptance or rejection of any

nomination or by gross failure to comply with the provisions of the Act or the rules framed

thereunder.



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The Court concurred with the direction of the learned Writ Court and dismissed the Letters

Patent Appeal.


There is no provision either in the Act or in the Rules framed thereunder envisaging or

contemplating draw of lots in the event there is a tie between two candidates securing the

highest number of votes. This methodology is stated to be contemplated by the instructions

contained in Clause 11 under Chapter XIV, viz. Counting of Votes, of the Handbook for

Conduct of Panchayat Elections, 1997 issued by the Election Authority professedly under

Section 36 of the Act read with Rule 3 of the J&K Panchayati Raj Rules, 1996.

20. Obiter Dicta: ---.



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II. Ghulam Mohammad Lone v. State of J&K

1. State: Jammu and Kashmir


3. Bench: Singh Judge Bench

4. Name of Bench: Muzaffar Hussain Attar, J.

5. Case no. : O.W.P. No. 817/2013 and I.A. No. 1309/2013

6. Name of the cases: Ghulam Mohammad Lone v. State of J&K


8. Appellant: Ghulam Mohammad Lone

9. Respondent: State of J&K

10. Case Type: O.W.P.and I.A.


a) Whether there is provision under Panchayat Raj Act and Rules for declaring the

candidates successful to the office of Sarpanch by draw of lots?

12. Grounds of Challenge: If there is a provision under Panchayat Raj Act and Rules for

declaring the candidates successful to the office of Sarpanch by draw of lots


• A.C. Jose vs. Sivan Pillai and Ors. 1984 SCC (2) 656



16. Provisions of Law Involved: Section 36 of the Jammu and Kashmir Panchayat Raj Act

of 1989; Rule 3 of Jammu and Kashmir Panchayat Raj Act of 1996



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17. Gist of Case:

In this petititon, the petitioner persisted with his claim to the office of Sarpanch, Panchayat

Halqa KP-299, Budnambal Payeen. The case of the petitioner in the earlier round of litigation

and in the present petition was that he was declared elected, having secured 262 votes as against

the private respondent who secured 261 votes out of 532 polled votes, 9 votes were declared

invalid. The certificate in this behalf was issued by the Assistant Returning Officer on 08th May,

2011. The petitioner argued that on the intervention of a stranger, re-counting was conducted and

one vote favouring the petitioner was rejected, thus, reducing the vote strength to that of 261

votes. The petitioner pleaded that Form PEL-17, which pertained to statement of counting of the

votes for Sarpanch of Panchayat Halqa KP-299, Budnambal, Payeen was a forged document as

the signature of the petitioner was obtained on the blank paper and later on entries were made in

the columns, showing that petitioner and private respondent had secured equal number of votes

viz. 261 each. In view of the tie between the candidates, the private respondent was declared

elected by draw of lots.

The Petitioner filed Appeal against the said decision of Returning Officer before the Appellate

Authority. The Appellate Authority dismissed the Appeal on the ground that petitioner has

signed the Form PEL-17. Petitioner challenged the said Order in O.W.P. No. 307/2012, which

writ petition was disposed of by the Court vide its order dated 31st October, 2012. The order of

the Appellate Authority dated 3rd March, 2012 was set aside. The Appellate Authority was

directed to re-hear the case and pass orders in accordance with the law. In the order of the Court,

it was observed, that learned counsel for the respondents, in his fairness, admitted that there

was no provision in Panchayat Raj Act and Rules for declaring the candidates successful to the

office of Sarpanch by draw of lots.

Private respondent, the elected candidate, challenged the said order in LPA. No. 200/2012. The

Letters Patent Appeal was disposed of on 22nd April, 2013, in which the order dated 31st

October, 2012 passed by the Writ Court was maintained, though for the reason recorded in the

Division Bench judgment. Before the LP Bench, reference was made to Clause-11 Chapter XIV

of Handbook for conducting Panchayat Elections under Act of 1997, issued by Election

Authority. It was canvassed at bar before the LP Bench that instructions had been issued under

section 36 of the Panchayat Raj Act of 1989 read with Rule 3 of Panchayat Raj Act of 1996. LP



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Bench, however, did not return any finding on the issue raised and left it open for the Appellate

Authority to decide the same as well. The Appellate Authority dismissed the Appeal of the

appellant vide its order dated 15th June, 2013. This order was called in question in this writ

petition.


In view of the law laid down in A.C. Jose V. Sivan Pilla and others reported in AIR 1984 SC

921, it was held that the Election Authority’s instructions to resolve the tie between the two

candidates, who have secured highest number of equal votes by draw of lots is legal and a

permissible method. There is no provision either in the Act of 1989 or in the Rules of 1996,

which prescribes the method and/or prohibits evolving a method for resolving the tie between

the two competing candidates having secured highest votes which are equal in number. The

Election Authority, thus, has power to issue the instructions for resolving the tie.

In this case, the tie has been resolved by draw of lots. The lot has fallen on the private

respondent and has been rightly declared to be elected. For the above stated reasons, the writ

petition along with connected IA’s was dismissed.


The Election Authority's instructions to resolve the tie between the two candidates, who have

secured highest number ofequal votes by draw of lots is legal and permissible method. There is

no provision either in the Panchayat Raj Act of 1989 or in the Rules of 1996, which prescribes

the method and/or prohibits evolving a method for resolving the tie between the two competing

candidates having secured highest votes which are equal in number. The Election Authority,

thus, has power to issue the instructions for resolving the tie.

20. Obiter Dicta:

It is also in the discretion of the Returning Officer to direct for counting of votes either once or

more than once, if he is not satisfied about the accuracy of the count. The Returning Officer is

under statutory obligation to declare the results on spot.



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III. Krishan Lal v. State of J&K and ors



3. Bench: Two Judge bench

4. Name of Bench: Honble Mr. Justice Mohammad Yaqoob Mir, Judge and Honble Mr.

Justice Bansi Lal Bhat, Judge

5. Case no.: LPAOW No. 38 OF 2013

6. Name of the cases: Krishan Lal v. State of J&K and Ors.


8. Appellant: Krishan Lal

9. Respondent: State of J&K and ors

10. Case Type: LPA


a) Whether the three valid votes which were earlier declared invalid can be taken into

consideration after rectification?

12. Grounds of Challenge: Legality of considering three valid votes which were earlier

declared invalid after rectification.




16. Provisions of Law Involved: Section 43 of the Jammu and Kashmir Panchayati Raj,

1989



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17. Gist of Case:

Appellant and respondent Nos. 4 to 6 contested the election for the post of Sarpanch of Halqa

Panchayat Chandu Chak. The polling and counting was held on 17th April, 201 and the

appellant was declared elected. Certificate of election was issued in his favour by respondent No.

2 (Returning Officer). Respondent No. 4 (Bachan Lal) filed the appeal before the Appellate

Authority under Panchayati Raj Act (Additional District Development Commissioner, Jammu)

as permissible under Section 43 of the Jammu and Kashmir Panchayati Raj Act, 1989.

During the course of proceeding of the appeal, election records were produced, on verification of

the rejected votes, it was found that out of 19 rejected votes three valid votes, without any

reason, had been taken as rejected votes and the said three votes were in favour of respondent

No. 4, who otherwise had lost election by a margin of two votes. Three valid polled votes having

been rejected without any reason, were added to the valid votes, as a result thereof, respondent

No. 4 had been declared as elected by the Appellate authority vide its order dated 23rd

September, 2011, in consequence whereof Election certificate in favour of respondent No. 4 was

issued on 11.10.2011.

Writ petition was filed by the appellant seeking quashment of order dated 23rd

September, 2011

passed by the Additional Deputy Commissioner Jammu (Appellate Authority Under Panchayati

Raj Act), and order dated 11th October, 2011 passed by respondent No. 2 (Returning Officer)

Election 2011 Panchayat Halqa Chandu Chak Tehsil R.S.Pura whereby the election certificate as

Sarpanch favouring the appellant, had been cancelled and Certificate of election as Sarpanch

dated 11.10.2011 favouring respondent No. 4, had been dismissed by learned Single Judge vide

judgment dated 03.04.2013. Aggrieved thereof, the instant Letters Patent appeal was filed.


By exercising the said powers and invoking the ground (b) of Section 43 of the Act, the

Appellate Authority found that inclusion of three polled votes with rejected votes had materially

affected the result of the election. The officers/officials who counted the votes did not perform

their duties properly. The contention of the learned counsel that the grounds specified in Section

43 of the Act were not available, was misplaced because in accordance with Rule 36 (3) of the

Rules, if a ballot paper is rejected reasons for such rejection had to be recorded on such ballot



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paper. Admittedly, no reason has been recorded, therefore, Rule 36 (3) was offended. So a clear

cut case of failure to comply with the said rule was made out and therefore the violation thereof

fell within the ambit of Section 43 (1) (b) (ii) of the Act. The appeal was dismissed as it lacked

merit.


In accordance with Rule 36 (3) of the the Panchayati Raj Rules 1996, if a ballot paper is rejected,

reasons for such rejection should be recorded on such ballot paper. Rule 36 (3) is offended if no

reason is recorded. A clear cut case of failure to comply with the said rule, results in violation

within the ambit of Section 43 (1) (b) (ii) of Panchayat Raj Act, 1989.




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IV. Kuldip Singh & Ors. v. State of J&K & Ors



3. Bench: One Bench Judge

4. Name of Bench: Hon'ble Mr. Justice Yash Paul Nargotra, J.

5. Case no.: CWP No. 155/2003

6. Name of the cases: Kuldip Singh & Ors. v. State of J&K & Ors


8. Appellant: Kuldip Singh & Ors.

9. Respondent: State of J&K & Ors

10. Case Type: CWP


a) Whether the construction of said Panchayat Ghar can be decided by member of

Panchayat itself?


The petitioners through this petition have questioned the construction of Panchayat Ghar on the

ground that the place has been selected under the influence of local MLA, which is not a central

place and instead of Phagwari, the Panchayat Ghar ought to have been constructed at Sarwal

itself.





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15. Area of Dispute Category: Dispute among Panchayats and between Panchayats and

State Agencies

16. Provisions of Law Involved: Jammu and Kashmir Panchayat Raj Act, 1989

17. Gist of Case:

The Panchayat Sarwal comprised of eight wards and eight members were elected to the said

Panchayat including petitioner No. 1. The Government had sanctioned some funds for the

Construction of the Panchayat Ghar. The Panchayat Ghar was being constructed at Village

Phagwari. The petitioner through this petition questioned the construction of said Panchayat

Ghar at that place on the ground that the place had been selected under the influence of local

MLA, which is not a central place and instead of Phagwari, the Panchayat Ghar ought to have

been constructed at Sarwal itself.


A Panchayat Ghar is the place where members of the Panchayat are required to transact business

under the provisions of Panchayati Raj Act. Where such Panchayat ghar should be located is the

question which has to be decided by the members of the Panchayat itself and it must be left to

their Judgment. The writ petition was dismissed.


The location of Panchayat ghar should be decided by the members of the Panchayat itself.




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V. Lal Singh v. State of J&K and ors.




4. Name of Bench: HasnainMassodi, J.

5. Case no. : OWP No. 238 of 2012 and CMA Nos. 2067 and D-1086 of 2012

6. Name of the cases: Lal Singh v. State of J&K and Ors.


8. Appellant: Lal Singh

9. Respondent: State of J&K and ors.

10. Case Type: OWP/ CMA


a) Whether counting of two tendered votes is as per the terms of J&K Panchayati Raj Act,

1989 and rules made there under?

12. Ground of Challenge: Legality of counting of two tendered votes under &K Panchayati

Raj Act, 1989.


• Wilfred D'souza vs. Francis Menino Jesus Ferrao, AIR 1977 SC 286





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16. Provision of Law Involved: Jammu and Kashmir Panchayat Raj Act, 1989; Rule 30 of

Jammu and Kashmir Panchayati Raj Rules, 1936.

17. Gist of Case:

Petitioner and respondent no. 7 contested election of Sarpanch, Panchayat Halqa, Kumait,

District Ramban held on 16.05.2011. In all 1148 voters cast their votes. Petitioner secured 526

votes while respondent no. 7 got 525 votes, 81 votes went in favour of one Mohd. Mubeen who

was the third candidate in the fray. While counting was on and petitioner was likely to be

declared elected, two tendered votes were opened by the Assistant Returning Officer. Both the

votes went in favour of respondent no. 7. His tally, therefore, got increased to 527, while

petitioner's votes remained at 526. Petitioner objected to counting of two tendered votes on the

ground that the votes could not be counted in terms of J&K Panchayati Raj Act, 1989 and rules

made there under. The matter was reported to Chief Electoral Officer through proper channel.

The District Panchayat Election Officer, Ramban-Deputy Commissioner recommended re-poll,

as according to him, election to aforementioned constituency was void.

The Deputy Chief Electoral Officer, in response to the communication No. 191/DCR/PS dated

17.05.2011 received from District Panchayat Election Officer (Deputy Commissioner) Ramban

vide communication No. 5309/CEO/P.E./Gen/6236 dated 19.05.2011, directed recounting and

also issued instructions to be observed during recounting. One of such instructions was not to

count the tendered votes. On recounting, petitioner was found to have polled 525 votes as

against 523 votes secured by respondent no. 7. Number of votes secured by Mohd. Mubeen

remained at 81. Petitioner was, accordingly, declared elected Sarpanch, 28-Panchayat Halqa

Kumait, District Ramban.

Respondent no. 7, not satisfied with the election result, filed statutory appeal under Section 43

of J&K Panchayati Raj Act, 1989 before Additional Deputy Commissioner, Ramban-the

appellate authority under Panchayati Raj, Act. The appeal was allowed and the order of

Returning Officer 28-Halqa Panchayat, Kumait, District Ramban, dated 20.05.2011 was set

aside. Consequently, Petitioner's election as Sarpanch 28-Panchayat Halqa, was resultantly set

aside.



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Petitioner aggrieved with the order of Additional Deputy Commission, Ramban, the appellate

authority, dated 15.02.2012, in this writ petition seeked the quashment of the impugned order.

The respondent no. 7 opposed the writ petition on the grounds that as the Tendered Votes, were

on enquiry found to be genuine and the voters namely Manohar Lal and Gayatri Devi to have

been impersonated, it was incumbent on the Returning Officer to count the votes in favour of

respondent no. 7 and declare the result accordingly. It was pleaded that fake votes were cast in

favour of the petitioner on behalf of late Pulla Singh (S. No. 5 in the voter list), Ram Chand (S.

No. 31 in the voter list), Sarban (S. No. 25 in the voter list), who had died much before the

polling date and that two voters, namely, Parvez Ahmad (S. No. 124 in the voter list) and

Zareena Begum (S. No. 125 in the voter list) were allowed to cast their votes in favour of

petitioner, though they belonged to Panchayat Halqa Ghari and had no right to cast their vote in

Panchayat Halqa Kumait.


The matter was remanded to the Appellate Authority for fresh consideration with the expectation

that it would be taken to its logical end, expeditiously as far as possible within four weeks from

the date it was taken up by the Authority. It was held that the Appellate Authority shall

scrutinize the tendered ballot papers on the anvil of evidence so adduced.

The scrutiny of the tendered votes shall govern counting of tendered ballot papers for the

candidate in whose favour these have been cast and deletion of the votes initially cast in the

name of voters permitted to offer tendered votes, from the tally of the candidate in whose favour

these were cast. Since petitioner had been declared elected Sarpanch, Panchayat Halqa, Kumait

by the Returning Officer and his election was under challenge, he shall continue as Sarpanch,

Panchayat Halqa, Kumait till the appeal is disposed of subject to orders as may be passed by the

Appellate Authority regarding the extent of duties to be performed as such. The writ petition

wass disposed of accordingly.


The tendered ballot paper may not be opened in case the gap/difference in number of votes

secured, between two contesting candidates is more than the number of tendered votes. In such

case, tendered votes are not to change the result of the election. However, tendered votes assume



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importance in case the difference between votes polled by two contesting candidates is narrow

and may be tilted either way by the tendered votes.




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VI. Prithvi Raj Bhagat v. State and Ors




4. Name of Bench: Honble Mr. Justice Muzaffar Hussain Attar

5. Case no.: OWP No. 1435 OF 2011

6. Name of the cases: Prithvi Raj Bhagat v. State and Ors


8. Appellant: Prithvi Raj Bhagat

9. Respondent: State and Ors

10. Case Type: OWP


a. Whether the petitioner’s signature taken on blank paper can amount to signature taken under

pressure and duress?

b. Whether the presence of the candidates in the counting premises was alone sufficient to make

the election process valid?


The Petitioner through Writ Petition challenged the election of the private respondent as also the

order of the appellate authority on the grounds that the election process stands vitiated as bogus

votes were cast and that the petitioners agents were not permitted to enter into the counting hall

and his signatures on form PEL-17 were obtained under pressure and duress.


14. Area of Dispute Name : Election



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16. Provisions of Law Involved: Section 43 of the Panchayati Raj Act 1989 ; Rule 35 (1) of

the Panchayati Raj Rules 1996

17. Gist of Case:

The dispute in this Writ Petition was regarding the election of private respondent as Sarpanch of

Panchayat Halqa Manthla-27. The petitioner was candidate in the elections, but lost the same.

He filed appeal before the appellate authority in terms of Section 43 of the Panchayati Raj Act

1989 (for short Act of 1989). The appeal was dismissed. Consequently, the petitioner filed the

Writ Petition, wherein he challenged the election of the private respondent as also the order of

the appellate authority. Learned counsel for the petitioner submitted that the election process

stands vitiated as bogus votes were cast and that the petitioner’s agents were not permitted to

enter into the counting hall and his signatures on form PEL-17 were obtained under pressure

and duress.


Since the petitioner was himself present at the time of counting of the votes, so there was no

requirement of allowing the agents to enter into the counting premises. The Writ Petition being

meritless was dismissed.


It cannot be accepted that the signatures were obtained under pressure and duress if there is no

averment indicating so. Rule 35 (1) of the Panchayati Raj Rules 1996, provides that the counting

of the votes shall commence in presence of the candidates or their agents.If the candidate is

himself/herself present during the counting, there is no requirement of allowing the agents to

enter into the counting premises.




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VII. Puran Chand v. District Election Officer and Ors.




4. Name of Bench: Janak Raj Kotwal, J.

5. Case no. : OWP No. 938/2011

6. Name of the cases: Puran Chand v. District Election Officer and Ors.


8. Appellant:Puran Chand

9. Respondent: District Election Officer and Ors.

10. Case Type: OWP


Whether the Appellate Authority appointed under section 43 of the Act has the jurisdiction to

reopen the question of rejection of ballot papers by the Returning Officer and whether appeal

on that score is maintainable?


The position if the Returning Officer rejects a ballot paper not in accordance with Rule 36 of the

Rules as amplified in clause 15.17(iii) of the Hand Book or, to say otherwise, if a ballot paper is

rejected even if it did not satisfy any of the grounds of rejection provided in Rule 36. Also, the

jurisdiction of the Appellate Authority appointed under section 43 of the Act to reopen the

question of rejection of ballot papers by the Returning Officer.


14. Area of Dispute Name : Election



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16. Provisions of Law Involved: Section 43 of the Jammu and Kashmir Panchayati Raj Act,

1989

17. Gist of Case:

Petitioner, Puran Chand and respondent No. 5, Piyare Lal, were the two candidates in fray for

election to the post of Sarpanch, Panchayat Halqa 9-Dhrubeel in Inderwal block of District,

Kishtwar. Election was held on 21.05.2011 and on the same day, the votes were counted. After

counting of the votes, the Returning Officer/Respondent No. 2 issued ‘statement of counting of

votes’ and the certificate certifying that the petitioner has been elected as the Sarpanch. As per

the statement of counting of votes, petitioner secured 608 votes and respondent No. 5 secured

604. Petitioner, thus, won the election by four votes. Feeling aggrieved by the result, respondent

No. 5 filed appeal under section 43 of the Jammu and Kashmir Panchayati Raj Act, 1989 (for

short, the Act) before the Appellate Authority, the Additional District Development

Commissioner, Kishtwar, respondent No. 1 herein. He sought mainly cancellation of the

certificate issued in favour of the petitioner.

Respondent No. 5 challenged the result of the election primarily on the grounds that some votes

were wrongly rejected at the time of counting and that there was no proper arrangement at the

time of counting of the votes inasmuch as appellant was not given proper timing for verification

of the rejected votes and that the Returning Officer completed the whole process in hot haste.

The Appellate Authority allowed the appeal vide his order dated 04.07.2011 and declared the

election issued in favour of the petitioner as null and void. Petitioner by the medium of this writ

petition assailed order dated 04.07.2011 passed by the learned Appellate Authority and sought

its quashing by issue of writ of certiorari and to declare that the petitioner was the winning

candidate.


The court observed that under Rule 36, a ballot paper is liable to be rejected if no mark is

recorded thereon or the mark recorded thereon is void for uncertainty or if it is otherwise not in

conformity with the Rules.



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The Appellate Authority was not justified in reopening the question and should not have

substituted his view for the view taken by the Returning Officer in utter disregard of sub-rule (4)

of Rule 36. The AppellateAuthority exceeded its jurisdiction and can be said to have acted

unfairly and arbitrarily and the order passed by him cannot sustain.

This writ petition succeeded upon merit. The impugned order dated 04.07.2011 passed by the

Appellate Authority was quashed by issue of a writ of certiorari and by issue of a writ of

mandamus.


Appeal under clause (b)(i) of Section 43(1) of J and K Panchayat Raj Act, 1989 would lie if

result of election has been ‘materially affected’ by improper acceptance or rejection of any

nomination and would lie under clause (b)(ii) if result of the election has been ‘materially

affected’ by ‘gross failure’ to comply with the provisions of the Act or the Rules framed

thereunder. If the Returning Officer rejects a ballot paper even if it did not satisfy any of the

grounds of rejection provided in Rule 36, the Returning Officer would be said to have failed to

comply with the provisions of Rule 36. In such instance, the case would be covered under clause

(b)(ii) of section 43(1) and appeal would lie even if under sub-rule (4) of Rule 36, the decision of

the Returning Officer as to validity or otherwise of a ballot paper is final.

20. Obiter Dicta:

‘Gross failure’ on the part of a person is distinct from simple failure.



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VIII. Uttam Chand v. State of J & K



3. Bench: One Bench Judge

4. Name of Bench: Dhiraj Singh Thakur, J.

5. Case no.: O.W.P. No. 1321/2011 and C.M.A. No. 1821/2011

6. Name of the cases: Uttam Chand v. State of J & K


8. Appellant:Uttam Chand

9. Respondent: State of J & K

10. Case Type: OWP/CMA


Whether the impugned order passed by the Appellate authority under Section 43 of the Jammu

& Kashmir, Panchayati Raj Act, 1989 is legal?

12. Grounds of Challenge :

The election of Sarpanch was challenged on grounds of proxy voting and votes cast on behalf of

the persons, who had been missing from the village since long.


14. Area of Dispute Name: Election and Civil

15. Area of Dispute Category: Eligibilty of Candidates



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16. Provisions of Law Involved: Section 43 of the Jammu & Kashmir, Panchayati Raj Act,

1989.

17. Gist of Case:

Through the medium of the present petition, the petitioner challenged the order dated 26th of

May, 2011 passed by the Sub-Divisional Magistrate (Collector) Billawar as an Appellate

Authority under Section 43 of the Jammu & Kashmir, Panchayati Raj Act, 1989. It was stated

that election for the post of Sarpanch for Panchayat Halqa, Kandharnoo, block Billawar, district

Kathua was held on 4th of May, 2011 in which respondent No. 7, namely, Hukkam Chand was

declared elected by a margin of five votes.

An appeal was preferred before the Appellate Authority, alleging corrupt practices in the process

of election. By virtue of order dated 26th of May, 2011, the Appellate Authority dismissed the

appeal. Thereafter, the present petition was filed.


It was observed that a reference to the order impugned showed that insofar as the allegations

regarding Sadiq Ahmed were concerned, it was found to be correct as the said person had cast

his vote twice being at Sr. No. 37 and 39 of the Voter list. The Appellate Authority held that

since the irregularity had been proved only in case of one vote, which has been cast twice at Sr.

No. 37 and 39 in Ward No. 5, it was not enough for changing the result of the election. The

Appellate Authority accordingly while dismissing the appeal held that there was no need for

declaring the result of the election in Panchayat Halqa, Kandharnoo as null and void. Since the

Appellate Authority had dealt with the issue extensively, the present petition was dismissed.


The issues having been dealt with in extenso by the Appellate Authority, the impugned order did

not appear to be suffering from any illegality.




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STATE OF JHARKHAND

I. Shibnandan Sah v. State of Jharkhand and Ors.

1. State: Jharkhand



4. Name of the Bench: S. Chandrashekhar, J.

5. Case Number: WP(C) No. 5025 of 2013

6. Name of the case: Shibnandan Sah v. State of Jharkhand and Ors.


8. Appellant: Shibnandan Sah

9. Respondent: State of Jharkhand and Ors

10. Case Type: WP


Whether the Deputy Commissioner has rightly passed the order restraining the petitioner from

exercising financial powers as the Mukhiya, upon receiving allegations of misconduct against

him?


Whether the Deputy Commissioner has rightly passed the order restraining the petitioner from

exercising financial powers as the Mukhiya, upon receiving allegations of misconduct against

him?




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14. Area of Dispute Name: Powers

15. Area of Dispute Category: Dispute between Powers of Sarpanch and Deputy Sarpanch

16. Provisions of Law Involved: Jharkhand Panchayat Raj Act, 2001 - Section 26,

Jharkhand Panchayat Raj Act, 2001 – Section 30


The financial power of the petitioner who was elected as Mukhiya in the Village-Pandaha was

taken away and transferred to the Deputy Mukhiya, against which the present writ petition has

been filed. The writ petitioner was elected as the Mukhiya of Gram Panchayat-Pandaha. A First

Information Report was lodged, on the basis of the written report against the petitioner on the

allegation that the petitioner was realizing money from the beneficiaries for recommending their

names for allotment of Indira Awaas and for old-age pension. The petitioner was granted benefit

of anticipatory bail. The learned counsel for the petitioner argued that under Section 30 of the

Jharkhand Panchayati Raj Act the Deputy Commissioner has no power or jurisdiction to

withdraw financial power of a Mukhiya. Section 30 of the Act talks of removal of Mukhiya

under certain conditions and power under Section 30 cannot be exercised by the Deputy

Commissioner. The Court held that the Deputy Commissioner has no power to remove the

Mukhiya and therefore, he has rightly not removed the petitioner from the post of Mukhiya.

However, since the petitioner has been given financial powers under the Act and the Rules

framed there under, in view of the allegations leveled against the petitioner, the Deputy

Commissioner has rightly passed order restraining the petitioner from exercising financial

powers. Considering the above facts, issuance of show-cause notice to the petitioner was mere

formality and therefore there is no violation of rules of natural justice. The writ petition was

dismissed.


The Deputy Commissioner has no power to remove the Mukhiya and therefore, he was right in

not removing the petitioner from the post of Mukhiya. However the Deputy Commissioner has

rightly passed order restraining the petitioner from exercising financial powers.




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Section 26 of the Jharkhand Panchayat Raj Act, 2001 provides that for removing Mukhiya or the

Deputy Mukhiya, a no confidence motion has to be taken in a special meeting of members which

shall be approved by 3/4 of the total numbers of members. Consequently, the Deputy

Commissioner has no power to remove the Mukhiya




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II. Savitri Devi v. State of Jharkhand and Ors.

1. State: Jharkhand




5. Case Number: W.P. (C) No. 5522 of 2013

6. Name of the case: Savitri Devi v. State of Jharkhand and Ors.


8. Appellant: Savitri Devi

9. Respondent: State of Jharkhand and Ors

10. Case Type: WP


Whether the dismissal of the election petition on the grounds of failure to make corrections by

the scheduled date was justified?

12. Grounds of Challenge: Whether the dismissal of the election petition on the grounds of

failure to make corrections by the scheduled date was justified?



15. Area of Dispute Category: Dispute between Powers of Sarpanch and Deputy Sarpanch

16. Provisions of Law Involved: Section 151 of the Jharkhand Panchayati Raj Act, 2001.




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A writ petition was filed by the petitioner who was a candidate for the post of Mukhiya,

Khariodih Panchayat. She filed her nomination which was proposed by Sri Ram Krishna

Sharma, whose name appeared at Sl. No. 129 in the Electoral Roll. Due to typographical error,

the name of the said Ram Krishna Sharma was mentioned as Ram Krishna “Thakur” and

therefore, the petitioner submitted an affidavit dated 03.11.2010 duly sworn by the said Ram

Krishna Sharma. However, the nomination of the petitioner was rejected. The petitioner

submitted her representation on 22.11.2010. However, the election was held on scheduled date

and the petitioner was prevented from contesting the election as the last date for correction was

14.11.2010.

The Court observed that the Sub-Divisional Officer and the Election Officer had recorded the

finding that when the petitioner submitted her nomination paper, affidavit of Ram Krishna

Sharma as alleged by the petitioner was not submitted and rather, photocopy of the affidavit was

submitted along with the election petition. During the trial, the said Ram Krishna Sharma was

not examined and the petitioner closed the evidence after examining herself. Hence there was no

infirmity in her nomination being cancelled and the case was dismissed.



The election commission was justified in cancelling the candidature of the petitioner as the

corrections were made at a later date and a photocopy was supplied in place of the original

affidavit. Also, the deponent was not examined. Hence the nomination for election couldn’t be

accepted.




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III. Suman Dubey v. The State of Jharkhand and Ors

1. State: Jharkhand




5. Case Number: W.P. (S) No. 8071 of 2012

6. Name of the case: Suman Dubey v. The State of Jharkhand and Ors


8. Appellant: Suman Dubey

9. Respondent: The State of Jharkhand and Ors.

10. Case Type: WP

11. Main Law Points Involved: Whether the petitioner has been illegally and arbitrarily

deprived appointment of the post of Prerak (Motivator), by the concerned Respondents?

12. Grounds of Challenge: Whether the petitioner has been illegally and arbitrarily

deprived appointment of the post of Prerak (Motivator), by the concerned Respondents?



15. Area of Dispute Category: Dispute among Panchayats and between Panchayat and

State Agencies

16. Provisions of Law Involved: Constitution of India - Article 14




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The present writ petition was filed for challenging the order of the Gram Sabha whereby, the

petitioner was not appointed on the post of Prerak (Motivator) but some other candidate

(respondent number 5) was appointed. The reason given by the Gram Sabha was that respondent

number 5 possessed more qualifications as compared to the petitioner. However it was observed

by the Hon’ble High Court that the petitioner who worked previously on the post of Prerak and

who had undergone certain trainings, which was related to discharging her function on the post

of Prerak and such experience of the petitioner had been overlooked by the Gram Sabha and

therefore the decision taken by the Gram-Sabha was open to challenge. It was apparent that there

were certain qualifications, which had been held to be desirable while making selection on

recruited post and such qualifications should have been looked into by the Gram Sabha.

Therefore the order of the Gram Sabha was held to be not maintainable.


The Court directed the Principal Secretary, Department of Human Resources Development, to

appoint an officer in the rank of Deputy Commissioner to hold an enquiry into the matter and

after affording proper opportunity of hearing to both the parties, i.e., the petitioner as well as the

Respondent No. 5, to take a decision in the matter.


It is a cardinal principle of law that any action of the authorities is subject to the test of Article

14 of the Constitution of India. The object which is sought to be achieved must have a nexus

with the decision taken. The petitioner previously worked as Prerak and had also undergone

certain training related to her function on the post of Prerak . Such experience of the petitioner

had been overlooked by the Gram Sabha and therefore, the decision of the Gram Sabha appears

arbitrary.

20. Obiter Dicta:

It cannot be said that the decision taken by the Gram-Sabha is not open to challenge.



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IV. Parmeshwar Pandit & Others v. The State of Jharkhand & Others

1. State: Jharkhand



4. Name of the Bench: Aparesh Kumar Singh, J.

5. Case Number: W.P. (S) No. 94 of 2006

6. Name of the case: Parmeshwar Pandit & Others v. The State of Jharkhand & Others


8. Appellant: Parmeshwar Pandit & Others

9. Respondent: The State of Jharkhand & Others

10. Case Type: WP

11. Main Law Points Involved: Whether the petitioner’s claim for de-reservation of the

vacant posts of Panchayat Sewak was maintainable?

12. Case Challenge: Whether the petitioner’s claim for de-reservation of the vacant posts of

Panchayat Sewak was maintainable?


14. Area of Dispute Name: Reservation

15. Area of Dispute Category: Reservation related to SC/ST and Women, Backward Class

16. Provisions of Law Involved: Constitution Of India - Article 16(4) (B)


The petitioners were trained Dalpaties and had been working in Sahabganj district from 1990

onwards. The petitioners claimed that 25 posts of Panchayat Sewak had remained vacant in



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respect of scheduled castes and scheduled tribes as on the date when the Jharkhand Panchayati

Raj Act, 2001 and Jharkhand (Panchayat Secretary) (Appointment, Service Condition and Duty)

Rules, 2002 had come into force. As per the said rules, 50% of the vacant posts were to be filled

up by the trained Dalpaties, while 50% were to be filled up by direct recruitment through

Commission. The case of the Respondent is that out of 34 vacancies existing on the date, 50% of

the vacant posts were earmarked to be filled up by the trained Dalpati. Thereafter, roaster

clearance was obtained and as per the roaster clearance, 5 posts which were meant for general

category, had been filled up through trained Dalpaties from the general category. According to

the Gradation List prepared, the names of petitioners occurred in the said list; however they were

not found suitable and hence their names did not figure in the list of selected candidates.

Petitioners did not challenge the said selection process, but claim for de-reservation of the said

vacant posts.


The claim of the petitioners for de-reservation of the unfilled 25 seats was found to be

misconceived and petitioners claim for promotion from the post of Dalpaties to Panchayat

Sewaks was not made out. The writ petition was accordingly dismissed.


As per the provisions of Article 16(4)(B) of the Constitution of India, the respondents in their

wisdom, had chosen to fill up the vacant posts as remaining, on the cutoff date after complying

with the rules for filling up vacancies from respective categories of scheduled castes, scheduled

tribes and general category upon roaster clearance, in which 5 posts were found to be left for

general category and were filled up from the same category. Petitioners obviously though being

in the gradation list, had not figured in the said list of selected candidates.




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V. Ramyad Ram and Ors. v. State of Jharkhand and Ors.

1. State: Jharkhand



4. Name of the Bench: P.K. Balasubramanyan, C.J. and Gurusharan Sharma, J.

5. Case Number: L.P.A. No. 533 of 2002

6. Name of the case: Ramyad Ram and Ors. v. State of Jharkhand and Ors.


8. Appellant: Ramyad Ram and Ors.

9. Respondent: State of Jharkhand and Ors.

10. Case Type: L.P.A


a. Whether the appellants were bound by the decision of the Patna High Court?

b. Whether the appellants were bound by the decision, if they were appointed as Panchayat

Sewaks?

c. Whether Rule 29 of Jharkhand Village Volunteer Force Rules 2001, saves the

appointment of the appellants.


Whether the appellants were bound by the decision of the Patna High Court? Whether the

appellants were bound by the decision, if they were appointed as Panchayat Sewaks? Whether

Rule 29 of Jharkhand Village Volunteer Force Rules 2001, saves the appointment of the

appellants?




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15. Area of Dispute Category: Dispute among Panchayats and between Panchayat and

State Agencies

16. Provisions of Law Involved: Bihar Panchayat Village Volunteer Force Rules, 1949

;Bihar Panchayati Raj Act, 1949 ;Bihar Panchayat Miscellaneous Rules, 1961 ;Jharkhand

Village Volunteer Force Rules, 2001 - Rule 29


The appellants were appointed as Dalpatis in the years 1994, 1995 under the Bihar Panchayat

Village Volunteer Force Rules, 1949. In 1993, a ban was imposed on appointment of Dalpatis

under the 1949 Rules. This ban was lifted on 1994. It was after the ban that the appellants were

appointed. Meanwhile, the validity of Panchayat Sewaks was questioned before the Patna High

Court and it was decided that all appointments made under the 1949 Rules subsequent to 1993

were invalid. Thus, the appointments of the appellants became invalid and non est. The

appellants filed a writ petition on the ground that they were not parties to the writ petitions and

thus they were not bound by the decision given by the Patna High Court but their petition was

dismissed on the ground that the Patna High Court had stated law and the same was binding on

the Government as well as on all the persons.


The Patna High Court had declared that any appointment made subsequent to 23.8.1993 under

the 1949 Rules was illegal. The law thus declared by the Patna High Court was binding on the

State as well as on all persons who had obtained appointments under the 1949 Rules subsequent

to the abovementioned date. Although the appellants were not co-nominee parties to the writ

petitions before the Patna High Court, they could not contend that the said declaration of law

was not binding on them or that their appointments were not illegal. Their appointments as

Dalpatis were made under a non-existent Rule and since the appointments of Dalpatis were

declared invalid by the Patna High Court, the fact that the appellants were subsequently

appointed as Panchayat Sewaks from Dalpatis, cannot confer a right on them to continue in the

post of Panchayat Sewaks. The argument that Rule 29 of Jharkhand Village Volunteer Force



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Rules, 2001 saves the appointment of the appellants as Dalpatis, cannot also be accepted as

Jharkhand Village Volunteer Force Rules, 2001 is only a subordinate piece of legislation and it

cannot override the law declared by the High Court. Thus, the arguments could not be accepted

and the appeal was accordingly dismissed.


A Rule cannot prevail over the law declared by the High Court whereby appointments made

under the 1949 Rules after 23.8.93, were declared to be illegal and void. Even if the Legislature

may have the power to alter the basis of a judicial decision, if does not have the power to

invalidate a decision rendered by the High Court. This cannot be achieved by a Rule. The

Jharkhand Village Volunteer Force Rules, 2001 is only a subordinate piece of legislation and it

cannot override the law declared by the High Court.




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VI. Sunil Kumar Das and Ors. v. State of Bihar (Now Jharkhand) and Ors.

1. State: Jharkhand



4. Name of the Bench: R.K. Merathia, J.

5. Case Number: CWJC No. 6929 of 2000(R)

6. Name of the case: Sunil Kumar Das and Ors. v. State of Bihar (Now Jharkhand) and

Ors.


8. Appellant: Sunil Kumar Das and Ors.

9. Respondent: State of Bihar (Now Jharkhand) and Ors.

10. Case Type: CWJC (Civil Writ)


Whether the order of cancellation of appointment was legal as petitioners contended that Act

was applicable to the Scheduled Areas?

12. Case Challenge: Whether the order of cancellation of appointment was legal as

petitioners contended that Act was applicable to the Scheduled Areas?


• Basudeo Besra v. Union of India and Ors., 1996 (1) PLJR 261


15. Area of Dispute Category:

Dispute among panchayats and between Panchayat and State Agencies



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16. Provisions of Law Involved: Constitution of India - Article 226; Bihar Panchayati Raj

Act, 1993


The relevant legislation under consideration is Bihar Panchayati Raj Act, 1993. The petitioners

were appointed as Dalpati .However there was no provision for the post of Dalpati under the

Bihar Panchayati Raj Act. Hence the appointment of the petitioners was cancelled. The present

writ petition was preferred against the order of cancellation of appointment.


The petitioners were reinstated to their original posts. However, it was held that this order would

not stand in the way of the respondents to pass any order in accordance with law after notice to

the petitioners, taking into consideration, the decision of this Court in the case of Basudeo Besra

v. Union of India and Ors. The Writ petition was allowed with the aforesaid

observations/directions.


In the case of Basudeo Besra v. Union of India and Ors, it was held that the Bihar Panchayati

Raj Act, 1993 is applicable to the Scheduled areas. There was no dispute that the areas in

question were Scheduled Areas. It was further held that proper opportunity to the Petitioner was

not given and the impugned orders of cancellation of appointment were issued mechanically.

Hence the order of cancellation of appointment could not be held to be legal and thereby the

same was set aside.




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VII. Basanti Devi v. The State of Jharkhand & Ors

1. State: Jharkhand



4. Name of the Bench: Hon’ble P.C. Tatia, Chief Justice and Hon'ble Mrs. Justice Jaya

Roy

5. Case Number: L.P.A. No. 420 of 2011

6. Name of the case: Basanti Devi v. The State of Jharkhand & Ors.


8. Appellant: Basanti Devi

9. Respondent: The State of Jharkhand & Ors.

10. Case Type: L.P.A

11. Main Law Points Involved: Whether the Returning Officer had the jurisdiction to

cancel the certificate of election issued to the elected candidate and the power of court to

consider the matter on factual ground.

12. Grounds of Challenge: Whether the Returning Officer had the jurisdiction to cancel the

certificate of election issued to the elected candidate and the power of court to consider the

matter on factual ground.


• M.V. Elisabeth and Ors. vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House,

Swatontapeth, Vasco-De-Gama, Goa 1993 SCC Supl. (2) 433 JT 1992 (2) 65;

• South Eastern Coalfields Ltd. vs. State of M.P. and Ors. AIR 2003 SC 4482




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16. Provisions of Law Involved: Rule 84 of Jharkhand Panchayati Raj Rules, 2001


The election of Mukhiya of Gram Panchayat under the provisions of Jharkhand Panchayati Raj

Act, 2001 was held for Arari Gram Panchayat. After counting of votes, for which, procedure has

been prescribed in Jharkhand Panchayati Raj (Election) Rules, 2001, a certificate of election was

issued in Form 22, as provided under Rule 84 of the Rules of 2001 in favour of the writ

petitioner-respondent. However, that certificate was cancelled by the Election Officer by

impugned order and the appellant was declared elected. A writ petition was filed by the writ

petitioner-respondent and it was held therein that the respondents-authority could not have

recalled the said certificate and could not have declared the appellant as elected, once the result

is declared. Learned Single Judge was also of the view that in any dispute with respect to the

election and its declaration of result, the only remedy is to prefer an Election Petition. But the

Returning Officer had no jurisdiction to cancel the certificate of election issued in favour of writ

petitioner-respondent. Aggrieved by this order, the present appeal has been preferred by the

appellant.


It was clear that the process of election was started under provisions of Rules. Once the

certificate was issued in favour of a candidate under Form 22 in accordance with Rule 84 of

Rules then that declaration was final and could be annulled only by an order of Tribunal or Court

authorized to entertain election petition. After declaration of result of election by Returning

Officer, he becomes functus officio and Returning Officer neither could entertain application for

recounting nor could cancel declaration of result and consequential certificate. It is a well settled

law that all election disputes should be resolved only by procedure provided by Rules under

which elections were conducted. Exclusion of election disputes was express and clear from

Rules. Order passed by Returning Officer giving certificate in Form 22 under Rule 84 of Rules

could not be said to be without jurisdiction. The Court opined that if certificate was wrongly

issued or illegally issued in favour of Respondent then the only course open for the Appellant

was to file an election petition. If declaration and certificate had been issued in favour of any



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person then it might be illegal but such declaration was not without jurisdiction, as in the said

facts of this case. Therefore the Court opined that it was matter of election and declaration of

result under Rules and therefore it had no jurisdiction to enter into factual aspect of the matter.

The Appeal was thus dismissed.


There is a lot of difference between “order wholly without jurisdiction” and an “illegal order”. If

an authority having jurisdiction by virtue of law passes an illegal order, that order cannot be an

order “without jurisdiction”. Such order is illegal order. An authority who has a jurisdiction to

pass order also has a jurisdiction to pass order which may ultimately be found illegal but that is

not the order passed by an authority who had no jurisdiction.

20. Obiter Dicta:

The High Courts in India are superior Courts of record having original and appellate jurisdiction

and they have inherent and plenary power and these powers are restricted when those

jurisdiction and powers are expressly and impliedly barred and subject to appellate or

discretionary jurisdiction of the Supreme Court, apart from the cases where the jurisdiction of

the High Court is expressly barred, the High Court has unlimited jurisdiction, even the

jurisdiction to limit their own power.



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VIII. Satya Narayan Yadav v. The State of Jharkhand and Ors

1. State: Jharkhand



4. Name of the Bench: R. Banumathi, C.J. and S. Chandrashekhar, J.

5. Case Number: W.P. (C) No. 5857 of 2012

6. Name of the case: Satya Narayan Yadav v. The State of Jharkhand and Ors.


8. Appellant: Satya Narayan Yadav

9. Respondent: The State of Jharkhand and Ors.

10. Case Type: WP

11. Main Law Points Involved: The constitutionality of Section 58(1) of the Jharkhand

Panchayati Raj Act, 2001 was challenged on the grounds of being arbitrary and discriminatory.

12. Grounds of Challenge: Whether Section 58(1) of the Jharkhand Panchayati Raj Act,

2001 which was challenged on the grounds of being arbitrary and discriminatory is

Constitutional?




16. Provisons of Law Involved:



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Jharkhand Panchayat Raj Act, 2001 - Section 49, Jharkhand Panchayat Raj Act, 2001 – Section

49(1), Jharkhand Panchayat Raj Act, 2001 - Section 49(2), Jharkhand Panchayat Raj Act, 2001 -

Section 54, Jharkhand Panchayat Raj Act, 2001 - Section 55, Jharkhand Panchayat Raj Act,

2001 - Section 58(1), Jharkhand Panchayat Raj Act, 2001 - Section 68(4), Jharkhand Panchayat

Raj Act, 2001 - Section 72


Section 58(1) of the Jharkhand Panchayati Raj Act, 2001, was challenged to be ultra vires on the

grounds of being arbitrary and discriminatory. A writ petition was filed by the petitioner who

was the Vice-Chairman of Zila Parishad, Garhwa. A ‘No Confidence Motion’ was moved

against the Chairman, Zila parishad, Garhwa in which 42 members participated. The Zila

parishad consisted of 44 members which included elected as well as nominated members. Out of

the 42 members who participated, 26 members supported the Motion and 12 members opposed

it. The contention of the petitioner was that the provision in Section 58(1) of the Jharkhand

Panchayati Raj Act, 2001 requiring 3/4th members to be supporting the motion is not in

consonance with the earlier provision of the Act and also not in consonance with the Bihar

Panchayati Raj Act. The impugned provision is ultra vires in as much as it is not in consonance

with sub-Section (ii) of Section 55 and that the requirement of 3/4th member present and voting

in the ‘No Confidence Motion’ against Chairman/Vice-Chairman of the Zila Parishad is not in

consonance with the similar provisions contained in Bihar and Andhra Pradesh Act and therefore

the same is liable to be declared ultra vires. The petitioner further submitted that, since only

elected members had elected the Chairman/Vice-Chairman of the Zila Parishad, the nominated

members could not be permitted to participate in the ‘No Confidence Motion’ and thus, the

provision under Section 58(1) of the Jharkhand Panchayati Raj Act, 2001 is liable to be struck

down.


The court observed that the petitioner had raised a plea that only elected representatives of the

Zila Parishad should have a right of voting and thus sought exclusion of all other members from

participating in ‘No Confidence Motion.’ The plea taken by the petitioner was contrary to the

provisions contained in Section 54 & 49(2) of the Act and the petitioner had not challenged the



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provision under Section 49(2) and Section 54 of the Jharkhand Panchayati Raj Act, 2001. The

petitioner relied on the provision under Section 68(4) of the Bihar Panchayati Raj Act, 1993 and

contended that the provision contained under Section 58(1) of the Jharkhand Panchayati Raj Act,

2001 is arbitrary and discriminatory. Hence the petition was dismissed.


The provision of the Jharkhand Panchayati Raj Act, 2001 cannot be assailed on the ground that

in another enactment there is a different provision for removal of the Chairman/Vice-Chairman

of the Zila Parishad.




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IX. Sudhakar Singh Sardar and Ors. v. State of Jharkhand and Ors.

1. State: Jharkhand



4. Name of the Bench: S.J. Mukhopadhaya, J.

5. Case Number: WP (S) No. 2932 of 2001

6. Name of the case: Sudhakar Singh Sardar and Ors. v. State of Jharkhand and Ors.


8. Appellant: Sudhakar Singh Sardar and Ors.

9. Respondent: State of Jharkhand and Ors.

10. Case Type: WP

11. Main Law Points Involved: Whether an order declaring the appointments of petitioners

on the post of Panchayat Sewaks as illegal and stopping the payment of their salary was tenable?

12. Case Challenge: Service Law

13. Reference taken from the cases: Pathak Kumbhkar and Ors. v. The State of Bihar and

Ors., CWJC No. 3919/1999 R

14. Area of Dispute Name: Others.

15. Area of Dispute Category: Disputes among Panchayats and between Panchayat and

State Agencies

16. Provisions of Law Involved: Jharkhand Panchayati Raj Act, 2001




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The State Government declared the appointments of newly appointed Panchayat Sewaks as

illegal and instructions were sought for from the Government and till intimation was received,

the payment of salary was stopped in favour of the Panchayat Sewaks including the petitioners.

The main plea taken by the petitioners is that their appointment were made after following the

procedure and as Bihar Panchayati Act 1993 is applicable in the scheduled areas including the

district of Singhbhum, such order cannot be given effect to.


The court placed reliance on the case of Pathak Kumbhkar and others v. The State of Bihar &

Ors., CWJC No. 3919/1999 R, wherein the Court had directed the Deputy Commissioner, East

Singhbhum, Jamshedpur, to ensure payment of salary in favour of the petitioners of the said

case, including the arrears. The case of the petitioners in this matter being similar to the case

above cited, the impugned order was set aside, so far as it related to these petitioners, with a

direction to the Deputy Commissioner, East Singhbhum, Jamshedpur, to ensure payment of

admitted salary in favour of the petitioners, including arrears, if any. Hence the writ petition was

allowed.


The case of the petitioners in this matter being similar to the case above cited, the impugned

order was set aside, so far as it related to these petitioners, with a direction to the Deputy

Commissioner.




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STATE OF KARNATAKA

I. Chikkamuniyamma v. The Assistant Commissioner

1. State- Karnataka

2. Court- High Court of Karnataka at Bangalore

3. Bench- Single Judge

4. Name of Bench- Ram Mohan Reddy, J.

5. Case No.- Writ Petition No. 49167/2014 (LB-ELE)

6. Name of the Case - Chikkamuniyamma v. The Assistant Commissioner

7. Date of Judgment- 21.10.2014

8. Appellant- Chikkamuniyamma

9. Respondent- The Assistant Commissioner

10. Case Type-Writ Petition

11. Main Law points-

Whether the Sub-Section 4 of Section 48 of the Karnataka Panchayat Raj (Motion of no-

confidence against Adhyaksha or Upadhyaksha of Grama Panchayat) Rules, 1994, and Section

49 of the Karnataka Panchayat Raj Act, 1993 are independent of each other?


Whether the Sub-Section 4 of Section 48 of the Karnataka Panchayat Raj (Motion of no-




• Smt. T. Bhagyalakshmi vs. State of Karnataka and Another ILR 1998 KAR 478;



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• Abdul Razak vs. The Assistant Commissioner, Davanagere Sub-Division and Ors. 2005

(1) KAR.L.J.230

14. Area of Dispute Name – Removal

15. Area of Dispute Category- Suspension of Sarpanch and Other members


Constitution of India - Article 226; Karnataka Panchayat Raj Act, 1993 - Section 48, Karnataka

Panchayat Raj Act, 1993 - Section 49

17. Gist of Case-

A no-confidence motion was passed against the petitioner. There is no dispute that Section 48 of

the Act provides for Resignation or removal of Adhyaksha or Upadhyaksha and sub-Section 4

provides that, every Adhyaksha and Upadhyaksha of Grama Panchayat would be entitled to an

opportunity of hearing before being removed from his Office for persistent remiss in discharge

of duties as Adhyaksha or Upadhyaksha. Section 49 of the Act provides for motion of

noconfidence against Adhyaksha or Upadhyaksha of Grama Panchayat, where under every

Adhyaksha or Upadhyaksha of the Grama Panchayat, shall be deemed to have vacated his office,

if a resolution expressing want of confidence is passed by a majority of not less than two-thirds

of the members of the Grama Panchayat at a meeting specially convened for the purpose in

accordance with the procedure prescribed. The right extended under Section 49 of the Act is to

the members to have Adhyaksha removed, if not less than two-thirds of the members have

expressed their lack of confidence in the Adhyaksha.

18. Operating Portion of the Judgment-

It was held by the court that the from the two statutory provisions, i.e., Section 48(4) of the

Kerala Panchayat Raj Act, 1993(the Act) for removal of the Adhyaksha or Upadhyaksha for

persistent remiss and other being a motion of no-confidence against Adhyaksha or Upadhyaksha

under Section 49 of the Act read with Rule 3 of the Karnataka Panchayat Raj (Motion of no-

confidence against Adhyaksha or Upadhyaksha of Grama Panchayat) Rules, 1994, it is crystal

clear that both provisions operate independent of each other. If the members of the Grama



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Panchayat have not initiated action against the petitioner under Section 48(4) of the Act for

persistent remiss, petitioner must be happy that the members have not sought her removal, but

on the other hand have moved a no-confidence motion to quietly ask her to vacate the office,

having lost confidence in the members. The consequences of a proceeding under Section 48(4)

of the Act, touching upon petitioner’s misconduct are much more severe than vacating the post

of Adhyaksha for lack of confidence. The petition was rejected.


Section 48(4) of the Karnataka Panchayat Raj Act, 1994 for removal of the Adhyaksha or

Upadhyaksha for persistent remiss and the motion of no confidence against Adhyaksha or

Upadhyaksha under Section 49 r/w Rule 3 of the Karnataka Panchayat Raj (Motion of no-

confidence against Adhyaksha or Upadhyaksha of Grama Panchayat) Rules, 1994, operate

independent of each other.

20. Obiter Dicta-

The right extended under Section 49 of the Karnataka Panchayat Raj Act, 1994 is to the

members to have the Adhyaksha removed, if not less than two-thirds of the members have

expressed their lack of confidence in the Adhyaksha.



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305

II. K.S. Pampanna v. The Deputy Commissioner, Bellary and Others

1. State- Karnataka

2. Court- High Court of Karnataka


4. Name of Bench- Chandrashekhar, J.

5. Case No.- Writ Petition No. 7202 of 1998

6. Name of the Case- K.S. Pampanna v. The Deputy Commissioner, Bellary and Others


8. Appellant- K.S. Pampanna

9. Respondent- The Deputy Commissioner, Bellary and Others



Whether the executive Officer call for the meeting for the second time on the basis of the notice

given expressing no confidence against the petitioner, when he earlier decided not to convene

the meeting?


If the executive Officer call for the meeting for the second time on the basis of the notice given

expressing no confidence against the petitioner, when he earlier decided not to convene the

meeting?

13. Reference taken from the case- Nil

14. Area of Dispute Name - Election




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16. Provisions of Law Involved- Karnataka Panchayat Raj Act, 1993 -Section 140(3)

17. Gist of Case-

The petitioner was the Adhyaksha of the Taluk Panchayat. Some of the members of the Taluk

Panchayat issued a notice expressing no confidence against the petitioner. Thereafter some of the

members who signed the notice expressed that they are withdrawing the said notice in view of

that the Chief Executive Officer decided not to call for the meeting to consider the notice given

by the members expressing no confidence as against the petitioner. Thereafter the Chief

Executive Officer called for the meeting for the second time to consider the notice expressing no

confidence against the petitioner. In the said meeting the motion was passed by two-thirds

majority expressing no confidence against the petitioner. This resolution was challenged by the

petitioner on the ground that the Executive Officer decided not to convene the meeting and

therefore he has no authority to call for the meeting for the second time on the basis of the notice

given earlier expressing no confidence against the petitioner.


The writ petition was rejected.


According to the proviso to Section 140 of the Karnataka Panchayat Raj Act, 1993, introduced

by Act No. 29 of 1997, if the motion of no confidence moved by certain members is not placed

before the committee for consideration, there is no prohibition to consider the motion of no

confidence subsequently.




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III. Karnataka State Election commission, now represented by its Under Secretary v.

Sri Venkatesha, S/o Sri Siddalingappa and Ors.

1. State- Karnataka


3. Bench- Division Bench

4. Name of Bench- J.S. Khehar, C.J. and A.S. Bopanna, J.

5. Case No.- Writ Appeal Nos. 4353-58/2010

6. Name of the Case- Karnataka State Election commission, now represented by its Under

Secretary v.Sri Venkatesha, S/o Sri Siddalingappa and Ors.


8. Appellant- Karnataka State Election commission

9. Respondent- Sri Venkatesha, S/o Sri Siddalingappa and Ors



Whether it is feasible to exclude such castes from the lists of Backward Classes which are

known and accepted to be “politically advanced” in order to avoid unnecessary and unwanted

litigation after the election process is over?


Whether it is feasible to exclude such castes from the lists of Backward Classes which are

known and accepted to be “politically advanced” in order to avoid unnecessary and unwanted

litigation after the election process is over?




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• K. Krishna Murthy (Dr.) and Ors. v. Union of India and Anr.: (2010) 7SCC 202;

• Supreme Court in Indra Sawhney v. Union of India and Ors.: AIR 1993 SC 477


15. Area of Dispute Category- Postponement/ Re-election

16. Provisions of Law Involved- Karnataka Panchayat Raj Act, 1993 - Section 2(2),

Karnataka Panchayat Raj Act, 1993 – Section 123, Karnataka Panchayat Raj Act, 1993 - Section

162; Principal Act - Section 123; Land Reforms Act ; Constitution of India - Article 15(4),

Constitution of India - Article 16(4), Constitution of India - Article 243(D), Constitution of India

- Article 243(D)(4), Constitution of India - Article 243(D)(6), Constitution of India - Article

243(T), Constitution of India - Article 243 (T)(4), Constitution of India - Article 243(T)(6)

17. Gist of Case-

Prior to the present writ, the Respondent Nos. 1 to 6 approached the Single judge bench with a

prayer to strike down the Karnataka Panchayat Raj (Amendment) Ordinance, 2010, in so far as it

only puts a cap on the total reservation in favour of scheduled caste, scheduled tribe and

backward classes provided under the Karnataka Panchayat Raj Act, 1993, at 50%, without fully

enforcing the constitutional mandate in the matter of reservation in Panchayat elections. Thus

direction was issued to the State Government, to give effect to the Constitutional mandate

contained in Part IX of the Constitution of India, and more particularly to Articles 243D and

243T of the Constitution of India. This required the State government, to redraw the reservation

notification, by eliminating the defects therein, i.e., by providing for reservation only on the

basis of “political backwardness.” The Court finally directed the State government to exclude

those castes which were pre-dominantly politically advanced from the list of Backward Classes.


The court held that it is just to exclude at least those castes which are pre-dominantly “politically

advanced” from the lists of Backward Classes. The instant direction did not transgress into the

territory, not within the domain of the judiciary, yet required those responsible to take the first

positive steps in the direction (even if it is not the whole step) so that the provisions of the



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Constitution of India and the judgment rendered by the Supreme Court in K. Krishna Murthy

(Dr.) and Ors. v. Union of India and Anr. (2010) 7 SCC 202 are given due effect. As the report

of Karnataka Third Backward Class Commission and detailed representation made by

Respondents 1 to 6 was summarily rejected by State government, it was directed to the State of

Karnataka that it should not have any difficulty to conclude, that some of the castes declared as

Backward Classes, were certainly not politically backward. Hence, it would be legitimate for

State government, to exclude all known, accepted and acclaimed politically advanced castes

from lists of Backward Classes, for purpose of reservation in ensuing Panchayat elections.

Therefore, it was directed to State government to exclude those castes which were pre-

dominantly politically advanced from the list of Backward Classes.


Burden to prove that reservation of seats does not violate constitutional guarantee and is

reasonable shall be on State.

20. Obiter Dicta:

Not all of the groups which have been given reservation benefits in the domain of education and

employment need reservations in the sphere of local self-government. This is because the

barriers to political participation are not of the same character as barriers that limit access to

education and employment. This calls for some fresh thinking and policy-making with regard to

reservations in local self-government.



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IV. N. Guddappa Poojary v. Assistant Commissioner, Puttur and Ors.

1. State- Karnataka

2. Court- High Court of Karnataka


4. Name of Bench- T.S. Thakur, J.

5. Case No.- W.P. No. 17750 of 1996

6. Name of the Case - N. Guddappa Poojary v. Assistant Commissioner, Puttur and Ors.


8. Appellant- N. Guddappa Poojary

9. Respondent- Assistant Commissioner, Puttur and Ors.



Whether a disqualification of a Member of the Panchayat can be determined without consulting

the Assistant Commissioner?


Whether a disqualification of a Member of the Panchayat can be determined without consulting

the Assistant Commissioner?


Karnataka Panchayatraj Act, 1993 - Section 13(1), Karnataka Panchayatraj Act, 1993 – Section

13(2)


15. Area of Dispute Name – Disqualification



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16. Area of Dispute Category- Office of Profit Related

17. Gist of Case-

A resolution was passed by Balpa Grama Panchayat, removing the petitioner from the post of

Adhyaksha of the said Panchayat. The petition also seeked a mandamus directing the Assistant

Commissioner, to declare that Respondents No. 3 and 4, had ceased to be Members of the

Grama Panchayat or in the alternative for a direction to consider and dispose of the application

filed by him in that regard. A no confidence motion was passed against the adhyaksha on the

ground that both the members of the Panchayat namely Respondents-3 and 4 had ceased to be

Members as they remained absent in more than three consecutive ordinary meetings of the

Grama Panchayat without leave of the said Panchayat.

The appellant argued that in terms of Section 13(1)(c) of Karnataka Panchayat Raj Act any

member who absents himself for more than three consecutive ordinary meetings of the Grama

Panchayat without the leave of the Grama Panchayat or is absent from the Panchayat area for

more than four consecutive months; loses his membership of the Panchayat. Therefore R3 and 4

had lost their Membership of the Panchayat and could not therefore participate in the No

confidence Motion proceedings held against them.


Since no such determination was made by Assistant Commissioner in present case under Section

13(1) and 13(2) of the Karnataka Panchayat Raj Act, 1993, R3 and R4 cannot lose their

membership or be disentitled from participating in the No Confidence Motion proceedings.

The court further held that there is nothing on record that suggests that the petitioner has taken

up the matter with the Assistant Commissioner with the same seriousness as is shown in the

present proceedings. The Writ Petition was accordingly dismissed.


According to Section 13(2) of the Karnataka Panchayat Raj Act,1993 should any question arise

as to whether a Member is or has become subject to any disqualification under Section 13(1), the



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Assistant Commissioner, may either suo motu or on a report made on him in that regard decide

the same.




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313

V. Nagappa v. Gangappa

1. State- Karnataka

2. Court- High Court of Karnataka Circuit Bench at Dharwad

3. Bench- Two Judge Bench

4. Name of Bench- D.V. Shylendra Kumar and B.V. Pinto, JJ.

5. Case No.- W.A. No. 30494/2012 (GM-CPC)

6. Name of the Case- Nagappa v. Gangappa


8. Appellant- Nagappa

9. Respondent- Gangappa

10. Case Type-Writ Appeal


Neither the Section 21 of the Karnataka Panchayat Raj Act, 1993 Act nor the Rule 73 of the

Karnataka Panchayat Raj (Conduct of Election) Rules, 1993 provide for any specific manner or

procedure to be adopted for drawing of lots in case of tie in election result.


Neither the Section 21 of the Karnataka Panchayat Raj Act, 1993Act nor the Rule 73 of the

Karnataka Panchayat Raj (Conduct of Election) Rules, 1993 provide for any specific manner or

procedure to be adopted for drawing of lots in case of tie in election result.


14. Provisions of Law Involved- Karnataka Panchayat Raj Act, 1993 - Section 21

15. Area of Dispute- Election



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16. Area of Dispute Category- Postponement/Reelection

17. Gist of Case-

There were some discrepancies in the counting of the election votes, therefore a Court

Commissioner was appointed for recounting the ballot papers and on such recount it was found

that the declared candidate had secured one vote more than the petitioner. However, as this was

objected to, the Learned Judge of the Civil Court had directed a fresh recount by the very Court

Commissioner in the presence of parties and on such recount, it was found that the election

petitioner as well as the declared candidate, had both secured equal number of votes.

In view of such a tie, the Learned Civil Court Judge with the consent of parties had decided to

declare the candidate in whose favour the lot falls, to be the elected candidate and for such

purpose the lots were drawn. But the procedure adopted for drawing lots was challenged as

neither proper nor as per the Rules and therefore the order passed by the Election Tribunal

should not be sustainable.


The court held that neither the provisions of Section 21 of the Act nor the provisions of Rule 73

of the Rules provide for any specific manner or procedure to be adopted for drawing of lots. On

a reading of these statutory provisions, at the best one can understand that a lot has to be drawn

by having the name of the candidates who have secured equal number of votes and the candidate

whose name is drawn is to be added one vote and therefore being declared elected.

It was held that the procedure followed by the Learned Judge of the Election Tribunal cannot be

termed as either contrary to Section 21 of the Karnataka Panchayat Raj Act, 1993 or Rule 73 of

the Karnataka Panchayat Raj (Conduct of Election) Rules, 1993. The Writ Appeal was thereby

dismissed.


In the absence of any specific procedure to be followed prescribed in case of a tie of votes, the

rules for drawing the lots by adding a couple of blank chits eliminates the possibility of person



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drawing lots having an identity of the chit containing the name of the two candidates. Thus the

procedure adopted cannot be said to defeat the purpose of drawing of lots.




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VI. B.K. Ningappa S/o Late Sri Kodappa and Jayanna S/o Late Sri Doddaningappa v.

B.K. Venkatesh, The President Gram Panchayat, The Secretary Gram Panchayat and The

Executive Officer Taluk Panchayat.

1. State- Karnataka



4. Name of Bench- N.K. Patil, J.

5. Case No.- W.P. No. 6207 of 2004

6. Name of the Case - B.K. Ningappa S/o Late Sri Kodappa and Jayanna S/o Late Sri

Doddaningappa v. B.K. Venkatesh, The President Gram Panchayat, The Secretary Gram

Panchayat and The Executive Officer Taluk Panchayat.


8. Appellant- B.K. Ningappa S/o Late Sri Kodappa and Jayanna S/o Late Sri

Doddaningappa

9. Respondent- B.K. Venkatesh, The President Gram Panchayat, The Secretary Gram

Panchayat and The Executive Officer Taluk Panchayat



Whether the officer of the panchayat has jurisdiction to give declaration about ownership of

land?


Whether the officer of the panchayat has jurisdiction to give declaration about ownership of

land?



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317


14. Area of Dispute Name - Property


16. Provisions of Law Involved- Karnataka Panchayat Raj Act, 1994

17. Gist of Case-

The petitioners purchased two vacant house sites under open public auction made by the

Municipality on 21.6.1971 as they were the highest bidders in the said auction conducted by the

predecessor of the 2nd respondent. The bid amount was paid on the spot to the Municipality and

executed registered sale deeds were made in favour of the petitioners. But father of the first

respondent had filed a suit for the relief of permanent injunction which included the properties

purchased by the petitioners. However the suit was dismissed. An appeal was filed by the

respondent against the dismissal of the suit. The said appeal was disposed of when the

respondent restricted his claim. It is the case where the validity of the public auction was

challenged by the first respondent in front of 4th

respondent (officer of the panchayat). It was

held by the 4th

respondent that the auction conducted by his predecessors was not in accordance

with law and there were several doubts on the verification of the files. Being aggrieved by the

same order the petitioners filed this writ petition.


It was held that 4th

respondent had committed an error while passing the said order as no proper

enquiry was conducted and petitioners were not given any fair opportunity. The manner in which

the 4th

respondent entertained the appeal filed by the first respondent assailing the resolution

passed by the predecessor of the 4th respondent putting the sites in auction after the lapse of more

than 32 years was not sustainable, for the reason that the said public auction had become final as

the highest bid of the petitioners were accepted. The necessary sale deeds have been executed in

their favour and their names have been entered in the records and they were put in possession of

their respective properties. But this aspect of the matter is not looked into by the 4th

respondent,

nor there is any whisper regarding the appeal filed by the first respondent in the impugned order.

4th respondent has extended his powers to the extent of declaring the property in the name of the



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predecessor of the first respondent without calling for the records and without verifying the

materials available on record. The manner in which 4th

respondent has proceeded to consider and

entertain the appeal filed by the first respondent after the lapse of more than 32 years is one

without jurisdiction. Nor he has got any such power under the mandatory provisions of the

Panchayat Raj Act and Rules. The manner in which the 4th respondent has proceeded to pass the

order is one without application of mind and contrary to the mandatory provisions of the

Panchayat Raj Act and Rules. Therefore order passed by the 4th respondent is set aside. Petition

allowed.


The 4th respondent has got the power under the mandatory provisions of the Karnataka

Panchayat Raj Act and Rules, only to verify as to whether the katha registered is in accordance

with law or not and not to give declaration declaring that the particular piece of land stands in

the name of the predecessor of the first respondent on the basis of some wrong transaction and

without verifying the records from the respondents 2 and 3.




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VII. Rathnamma v. State of Karnataka

1. State- Karnataka



4. Name of Bench- Ram Mohan Reddy, J.

5. Case No.- Writ Petition No. 50658/2014 (LB-ELE)

6. Name of the Case- Rathnamma v. State of Karnataka


8. Appellant- Rathnamma

9. Respondent- State of Karnataka

10. Case Type-WP


a. Whether an elected ‘Upadhyaksha’ can be removed from the Membership of Grama

Panchayat on charges of misconduct in terms of section 48[4] and 43A of the Karnataka


b. Is it mandatory under Rule-3 of the Karnataka Panchayat Raj [Acquisition and Transfer

of movable and immovable properties by Grama Panchayat] Rules, 1996, to secure prior

sanction and permission of the Taluk Panchayat before disposing of movable properties of the

Grama Panchayat?


Whether an elected ‘Upadhyaksha’ can be removed from the Membership of Grama Panchayat

on charges of misconduct in terms of section 48[4] and 43A of the Karnataka Panchayat Raj Act,

1993? Is it mandatory under Rule-3 of the Karnataka Panchayat Raj [Acquisition and Transfer of

movable and immovable properties by Grama Panchayat] Rules, 1996, to secure prior sanction



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and permission of the Taluk Panchayat before disposing of movable properties of the Grama

Panchayat?




16. Provisions of law Involved-

Karnataka Panchayat Raj Act, 1993 - Section 43A, Karnataka Panchayat Raj Act, 1993 –

Section 48[4]

17. Gist of Case-

The petitioner was elected as ‘Upadhyaksha’ of the Gram Panchayat. He was said to have

illegally disposed of the four pipes belonging to Grama Panchayat to ‘Devastanada

Gudigowdaru.’ A notice was issued, to show cause why she should not be removed from the

Membership of Grama Panchayat on charges of misconduct in terms of section 48[4] and 43A of

the Karnataka Panchayat Raj Act, 1993. The Petitioner responded to the show cause notice by a

reply stating that the four pipes were handed over to Grama Panchayat stating that they were old,

unwanted pipes and those were given to ‘Devastanada Gudigowdaru’ as the Temple Committee

expressed the need for such pipes for the Temple. The Executive Officer of the Grama

Panchayat is said to have inspected the four old and unwanted pipes and instructed the Grama

Panchayat to dispose of the same by way of auction. Therefore, it was contended that there was

no illegality in the proceedings for disposal of the said four pipes.

However the Department of Village Development, Government of Karnataka, declined to accept

the explanation offered by the petitioner and held the petitioner guilty of the charge and

accordingly removed her from the membership of the Gram Panchayat. The court also held the

petitioner guilty of charge of misconduct in the discharge of duties as a ‘Member.’ Hence

petition was rejected.




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The petitioner was removed from the Membership of Grama Panchayat on charges of

misconduct in terms of section 48[4] and 43A of the Karnataka Panchayat Raj Act, 1993. Also,

the Rule-3 of the Karnataka Panchayat Raj [Acquisition and Transfer of movable and

immovable properties by Grama Panchayat] Rules, 1996, requires the Grama Panchayat to

secure prior sanction and permission of the Taluk Panchayat before disposing of any movable

properties of the Grama Panchayat. Such permission or sanction was not obtained by the

petitioner before disposal of the four pipes in favour of the Chairman of the Committee of Sri

Era Beeralingeshwara Temple. Auction notice was also not issued. The sale seemed to be only

private affair. Therefore the respondent was fully justified in removing the petitioner from the

Membership of the Grama Panchayat being guilty of charge of misconduct in the discharge of

duties as a ‘Member’.


Rule-3 of the Karnataka Panchayat Raj [Acquisition and Transfer of movable and immovable

properties by Grama Panchayat] Rules, 1996, provides for disposal of movable properties of the

Grama Panchayat, requiring the Grama Panchayat to secure prior sanction and permission of the

Taluk Panchayat. A member can be removed from the Gram Panchayat if such permission is not

obtained.




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VIII. Smt. Parvathi v. The Assistant Commissioner, Haveri Sub-Division, Haveri and

Another

1. State- Karnataka



4. Name of Bench- Chandrashekhar, J.


6. Name of the Case - Smt. Parvathi v. The Assistant Commissioner, Haveri Sub-Division,

Haveri and Another


8. Appellant- Smt. Parvathi

9. Respondent- The Assistant Commissioner, Haveri Sub-Division, Haveri and Another



Whether a meeting called by the Assistant Commissioner is illegal on the ground that he has no

authority whatsoever to call for the meeting within the expiry of 10 days from the date of receipt

of no-confidence motion notice against the petitioner?


Whether a meeting called by the Assistant Commissioner is illegal on the ground that he has no

authority whatsoever to call for the meeting within the expiry of 10 days from the date of receipt

of no-confidence motion notice against the petitioner?





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Karnataka Panchayat Raj Act, 1993 - Section 49; Karnataka Panchayat Raj (Motion of No

Confidence against Adhyaksha and Upadhyaksha) Rules, 1994 - Rules 3(1, Karnataka Panchayat

Raj (Motion of No Confidence against Adhyaksha and Upadhyaksha) Rules, 1994 - Rules 2)

17. Gist of Case-

The petitioner was elected Adhyaksha of Kuppellur Gram Panchayat. Some of the members of

the Panchayat moved a no confidence motion against the petitioner by giving the notice to the

Assistant Commissioner as contemplated under the Karnataka Panchayat Raj Act, 1993.

Pursuant to the said notice, the Assistant Commissioner called for the meeting. This, according

to the petitioner is illegal on the ground that the Assistant Commissioner has no authority

whatsoever to call for the meeting within the expiry of 10 days from the date of receipt of the

notice.


Petition was filed challenging the notice calling for the meeting to consider no confidence

motion. The Writ Petition was dismissed.


The reading of the Karnataka Panchayat Raj (Motion of No Confidence against Adhyaksha and

Upadhyaksha) Rules, 1994 with the proviso to Section 49 of the Act, clearly indicates that the

persons who intend to move the no confidence, shall give at least ten days notice to the Assistant

Commissioner. This ten days notice to the Assistant Commissioner will not come in the way of

the Assistant Commissioner to call for the meeting to consider the motion of no confidence

before the expiry of 10 days from the date he received the notice.




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IX. Sri Ashokan. K. and Ors. v. State of Karnataka Department of Rural Development

and Panchayat Raj, Represented by its Principal Secretary, State Election Commission,

Represented by its Secretary, The Regional Commissioner, Bangalore Region and

Bangalore Urban Zilla Panchayat, Represented by its Chief Executive Officer

And

Sri H.T. Nagareddy and Ors. v. State of Karnataka, The Department of Rural

Development and Panchayat Raj, By its Secretary, The Commissioner, State Election

Commission and The Regional Commissioner, Bangalore Division

1. State- Karnataka



4. Name of Bench- H.G. Ramesh, J.

5. Case No.-

• Writ Petition Nos. 50161, 50210-50242/2013 (LB-ELE) and 50753-50778/2013 (LB-

RES)

• Writ Petition Nos. 50939-50965/2013 (LB-RES) and 51324-51357/2013 (LB-ELE)

6. Name of the Case –

Sri Ashokan. K. and Ors. v. State of Karnataka Department of Rural Development and

Panchayat Raj, Represented by its Principal Secretary, State Election Commission, Represented

by its Secretary, The Regional Commissioner, Bangalore Region and Bangalore Urban Zilla

Panchayat, Represented by its Chief Executive Officer

And

Sri H.T. Nagareddy and Ors. v. State of Karnataka, The Department of Rural Development and

Panchayat Raj, By its Secretary, The Commissioner, State Election Commission and The

Regional Commissioner, Bangalore Division



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8. Appellants- Sri Ashokan. K. and Ors.; Sri H.T. Nagareddy and Ors.

9. Respondents- State of Karnataka Department of Rural Development and Panchayat Raj,

Represented by its Principal Secretary, State Election Commission, Represented by its Secretary,

The Regional Commissioner, Bangalore Region and Bangalore Urban Zilla Panchayat,

Represented by its Chief Executive Officer; State of Karnataka, The Department of Rural

Development and Panchayat Raj, By its Secretary, The Commissioner, State Election

Commission and The Regional Commissioner, Bangalore Division



Discussing the validity of sub-rule (2) of Rule 4 of the Karnataka Panchayat Raj (Declaration of

Assets by Elected Members of Taluk Panchayats and Zilla Panchayats) Rules, 2010.

12. Grounds of Challenge- Whether sub-rule (2) of Rule 4 of the Karnataka Panchayat Raj

(Declaration of Assets by Elected Members of Taluk Panchayats and Zilla Panchayats) Rules,

2010 is valid?

13. Reference taken from the case-Nil.

14. Area of Dispute- Others


State Agencies

16. Provisions of Law Involved- Karnataka Panchayat Raj Act, 1993 - Section 175-A

17. Gist of Case-

The petitioners, members of Zilla Panchayats of various Districts challenged the validity of sub-

rule (2) of Rule 4 of the Karnataka Panchayat Raj (Declaration of Assets by Elected Members of

Taluk Panchayats and Zilla Panchayats) Rules, 2010 on the ground that it is contrary to sub-

Section (4) of Section 175-A of the Karnataka Panchayat Raj Act, 1993 and hence is ultra vires



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the Act. The petitioners also challenged the communication with the Regional Commissioner,

Bangalore Division, Bangalore, wherein he referred the matter to the State Election Commission

for adjudication as per sub-rule (2) of Rule 4 of the Rules by stating that the petitioners have

ceased to be members of the respective Zilla Panchayats either for not declaring their Assets or

for not filing their declaration of Assets within the prescribed period.


Sub-rule (2) of Rule 4 of the Karnataka Panchayat Raj (Declaration of Assets by Elected

Members of Taluk Panchayats and Zilla Panchayats) Rules, 2010 conferring power on the

Regional Commissioner to refer the matter to the State Election Commission for adjudication is

clearly violative of sub-Section (4) of Section 175-A of the Act and hence is ultra vires of the

Kerala Panchayat Raj Act, 1993. Accordingly, sub-rule (2) of Rule 4 of the Rules was declared

as ultra vires the Act. Consequently, the impugned communication with the Regional

Commissioner, Bangalore Division, Bangalore, was held unsustainable in law and thus set aside.


Section 175-A sub-section (4) of the Karnataka Panchayat Raj Act, 1993 confers power only on

the Zilla Panchayat to refer the matter relating to contravention of Section 175-A of the Act by

members of the Zilla Panchayat for adjudication to the State Election Commission and not on

the Competent Authority (under the Rules, the Competent Authority is the Jurisdictional

Regional Commissioner). In other words, the power to refer is conferred only on the Zilla

Panchayat and not on the Competent Authority.




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X. Thirumalamma and Ors. v. The Principal Secretary Government of Karnataka

Housing & Urban Development Department and Ors.

1. State- Karnataka



4. Name of Bench- Ashok B. Hinchigeri, J.

5. Case No.- Writ Petition No. 394 of 2008 (LA-UDA), Writ Petition Nos. 9966/08,

1914/07, 2447/08, 361/08, 2733/08, 1915/07, 17000/08 & 17052-54/08, 37548-549/09, 25570-

572/09, 5490- 5491/09, 2348-2458/11, 11927-11947/11, 14351-14352/11, 39034/10 &

39035/10, 34369-34383/10, 41507-41519/10 & 41676-41695/10 and 41520-41526/10

6. Name of the Case- Thirumalamma and Ors. v. The Principal Secretary Government of

Karnataka Housing & Urban Development Department and Ors.


8. Appellant- Thirumalamma and Ors.

9. Respondent- The Principal Secretary Government of Karnataka Housing & Urban

Development Department and Ors.

10. Case Type-WP


a. Whether Allotment procedure can be called as arbitrary and discriminatory if there is no

advertisement for the same?

b. Whether the principles of natural justice can be applied when the allotments are void ab

initio?

c. When the allotments are being declared illegal, can the acquisition proceedings be

declared as lapsed?



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d. What relief, if any, can be given to the petitioning land owners?


Whether Allotment procedure can be called as arbitrary and discriminatory if there is no

advertisement for the same? Whether the principles of natural justice be applied when the

allotments are void ab initio?


• Northern Indian Glass Industries v. Jaswant Singh and Ors. Appeal (civil) 7023 of 1993;

• Urmila Roy and Ors. v. Bengal Peerless Housing Development Company Ltd. and Ors.

(2009) 5 SCC 242.

• Royal Orchid Hotels Limited and Anr. v. G.Jayarama Reddy & Ors.(2011)10 SCC 608;

• Greater Noida Indusl. Devt. Auth. v. Devendra Kumar and Ors. (2011) 12 SCC 375;

• Smt Ningamma Patil w/o Late Kuberagowda Patil and Ors. v. The State of Karnataka by

its Secretary to Housing and Urban Development Department, Writ Appeal

No.5014/2008(LA-RES);

• Shimoga Urban Development Authority and Anr. v. State of Karnataka and Ors. ILR

2002 KAR 2078;

• Jeelani Mosque Committee (R) v. The Shimoga Urban Development Authority and The

Shimoga Urban Development Authority and Anr. ILR 2005 KAR 5819; 2006 (2) KarLJ

579.

• Yanala Malleshwari and Ors. v. Ananthula Sayamma and Ors. 2006 (6) ALT 523; 2007

(1) CTC 97.

• Sunil Pannalal Banthia and Ors. v. City and Industrial Development Corpn. of

Maharashtra Ltd. and Anr. Appeal (civil) 1219 of 2007;

• B.L. Wadhera v. Union of India (UOI) and Ors. Writ Petition (civil) 179 of 1999;



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329

• Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh and Ors. CIVIL

APPEAL NO. 2965 OF 2011;

• Sri Rajendra Kumar Goyal S/o Late Sri Jeevanram Goyal Proprietor Sree Sai Stone

Company v. The Karnataka Industiral Areas Development Board rep. by its Chief

Executive Officer and Executive Member; Writ Petition No. 13239 of 2006 (GM-KIADB)

• Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority and Ors. 2011 (1) TMI

1322;

• Centre for Public Interest Litigation and Ors. v. Union of India (UOI) and Ors. CIVIL

APPEAL NO.10660 OF 2010;

• S.L. Kapoor v. Jagmohan and Ors. 1981 AIR 136, 1981 SCR (1) 746;

• Binny Mill Labour Welfare House building Co-operative Society Limited v. D.R.

Mruthyunjaya Aradhya ILR 2008 KAR 2245.

• Om Prakash & Anr. v. State of U.P. & Ors. [1998] INSC 332;

• Thimmappa and Anr. v. State of Karnataka and Ors. 2003 (6) KarLJ 5

14. Area of Dispute Name- Property

15. Area of Dispute Category- Dispute over Ownership of Building and Land

16. Provisions of Law Involved- Karnataka Urban Development Authorities Act, 1987 -

Section 16, Karnataka Urban Development Authorities Act, 1987 - Section 17, Karnataka Urban

Development Authorities Act, 1987 - Section 17(1), Karnataka Urban Development Authorities

Act, 1987 - Section 17(3), Karnataka Urban Development Authorities Act, 1987 - Section 19,

Karnataka Urban Development Authorities Act, 1987 - Section 19(1), Karnataka Urban

Development Authorities Act, 1987 - Section 27, Karnataka Urban Development Authorities

Act, 1987 - Section 31, Karnataka Urban Development Authorities Act, 1987 - Section 34,

Karnataka Urban Development Authorities Act, 1987 - Section 36, Karnataka Urban

Development Authorities Act, 1987 - Section 39; Land Acquisition Act, 1894 - Section 16, Land

Acquisition Act, 1894 - Section 31(3), Land Acquisition Act, 1894 - Section 36; Transfer Of

Property Act, 1882 – Section 5



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17. Gist of Case-

There was a challenge to the allotment of land to various organizations without calling for the

applications. There was a demand for a transparent policy in the matter of allotment. The court

was of the view that allotments made by Hassan Urban Development Authority in favor of

various organizations are unsupportable and unsustainable as public law is not complied with at

all. No advertisement was issued calling for the applications from the desirous parties for the

allotment of civic amenity sites. It was opined by the court that if the allotments are done in an

unreasonable manner then that is to be treated as arbitrary and discriminatory. It has to be in

conformity with the doctrine of equality.


The court held that there is no provision in the Karnataka Urban Development Authorities Act,

1987 or the Rules framed thereunder for making the allotment of land without issuing the

advertisement and without calling for the applications from eligible and desirous parties. The

court referred to the Apex Court’s judgment in the case of Centre For Public Interest Litigation

and Others v. Union of India and Others reported in (2012) 3 SCC 1, wherein the Apex Court

has expressed the considered view that the methods like ‘first come first served’ when used for

alienations of natural resources/public property are likely to be misused by unscrupulous people,

who are only interested in garnering maximum financial benefit and have no respect for the

constitutional ethos and values. Equal opportunity, fairness and transparency can be ensured

either by conducting a duly publicized auction or by fixing the allotment consideration and

calling for applications and comparatively evaluating them for sub-serving the public interest.

Thus the allotments in favour of the societies and organisations have deprived the landowners of

their land under the cover of public purpose; the diversification of the land for a private purpose

is not permissible. Also, when the allotments are void abinitio, the observance of the principles

of natural justice would only be an empty formality.

The court also held that as the majority of the land-owners have accorded their consent to the

land acquisition and have received the compensation-amounts, they are not justified in

demanding the restoration of the lands to them.



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To the last question the court opined that as some of the land-owners have chosen to file the writ

petitions and some have not. Those who have not cannot be disentitled to any relief. Nor there

can be any discrimination between the two. The principle of equal protection of law has to be

extended to the petitioning landowners.

The petitioning land-owners are entitled to the allotment of developed lands. Their entitlement is

to 40% of the lands acquired from them. Their obligation shall be to return the entire

compensation amount along with interest at the rate of 9.5% per annum from the date of the

receipt of the amounts till the date of the return of the amounts.

The Hassan Urban Development Authority was directed to issue the demand notice to the land-

owners, who had received the compensation, quantifying the amounts liable to be paid by them.

It was directed that this shoud be done within one month from the date of the receipt of the

Government’s order of approval for the said resolution of the Hassan Urban Development

Authority.


The administrative decision-making, if it involves civil consequences, has to be made by

adhering to the principles of natural justice. But when the allotments are void ab initio, the

observance of the principles of natural justice would only be an empty formality. When the

allotments are illegal per se, any direction to hear the allottess before cancelling the allotment

would only amount to issuing a futile writ.




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STATE OF KERALA

I. Aneesh v. The Ombudsman for Local Self Government Institutions

1. State- Kerala

2. Court- In The High Court OF Kerala


4. Name of Bench- K.M. Joseph and A.K. Jayasankaran Nambiar, JJ.

5. Case No.- W.A. No. 345 of 2014

6. Name of the Case – Aneesh v. The Ombudsman for Local Self Government Institutions


8. Appellant- Aneesh

9. Respondent- The Ombudsman for Local Self Government Institutions



a. Whether there is ouster of the jurisdiction of the Ombudsman in view of S. 271M (4)(b)

of Kerala Panchayat Raj Act, 1994?

12. Grounds of Challenge: Jurisdiction of the Ombudsman in view of S. 271M (4)(b) of

Kerala Panchayat Raj Act



15. Area of Dispute Category – Dispute over ownership of buildings and lands

16. Provisions of Law Involved- 1994 Code of Civil Procedure, 1908 (CPC) - Section 11;

Code of Civil Procedure, 1908 (CPC) – Section 47; Constitution Of India - Article 226,

Constitution Of India - Article 304; Kerala Panchayat Raj Act, 1994 - Section 235I, Kerala

Panchayat Raj Act, 1994 - Section 235J, Kerala Panchayat Raj Act, 1994 - Section 235L, Kerala

Panchayat Raj Act, 1994 - Section 235N, Kerala Panchayat Raj Act, 1994 - Section 235N(1),

Kerala Panchayat Raj Act, 1994 - Section 235V, Kerala Panchayat Raj Act, 1994 - Section

235W, Kerala Panchayat Raj Act, 1994 - Section 235W(1), Kerala Panchayat Raj Act, 1994 -



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Section 235X, Kerala Panchayat Raj Act, 1994 - Section 271, Kerala Panchayat Raj Act, 1994 -

Section 271(1)(c), Kerala Panchayat Raj Act, 1994 - Section 271J, Kerala Panchayat Raj Act,

1994 - Section 271J(iii)(a), Kerala Panchayat Raj Act, 1994 – Section 271M(4)(b), Kerala

Panchayat Raj Act, 1994 - Section 271N(c), Kerala Panchayat Raj Act, 1994 - Section 271Q,

Kerala Panchayat Raj Act, 1994 - Section 271S, Kerala Panchayat Raj Act, 1994 - Section 276,

Kerala Panchayat Raj Act, 1994 - Section 276(4)

17. Gist of Case-

The petitioner and his wife owned 12 cents of land and a house. The 3rd Respondent (R3) was

the neighbour. There was a public pathway of 3 metre width in front of the petitioner’s house

leading to the public road. A portion of the said pathway which lay on the side of the R3

property was clandestinely annexed to his land and got a decree from civil court for fixing

boundary accordingly. Later, construction was started by R3 which was stopped by Panchayat

being violative of Building Rules. When R3 tried to annex the available 1 meter pathway to

his land, the petitioner objected to the same. Later, the petitioner also filed Writ, in which the

Court directed the Ombudsman to reconsider the matter. Ignoring the same, the Ombudsman,

passed an order to conduct survey and measurement of the land ignoring the pendency of civil

suit in the same issue and the specific bar by S. 47 of the Civil Procedure Code. The said

order was challenged. Learned single Judge did not find it fit to interfere with the order

impugned, in exercise of the powers conferred under Article 226 of the Constitution of India,

and dismissed the Writ Petition. Hence an appeal was brought by the petitioner.


The court held that the Ombudsman should not have proceeded to consider the matter having

regard to S. 271(1)(c). This is a matter which involved the exercise of discretionary power.

The appellant cannot be permitted to contend that invariably on account of the fact that there

is a remedy open to R3 to have gone before the Secretary; a decision should be taken by the

Ombudsman to so relegate. The matter should be decided with reference to the decree

between the parties. The powers of Lok Ayuktha includes the power to dispose off the

complaint under S. 271Q by ordering supply of omission or rectification of defects due to

inaction. The court finally held that they need not interfere with the direction as given by the

Ombudsman.




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It is not appropriate for a court deciding a Writ Appeal to interfere with the exercise of

discretionary jurisdiction in not relegating the complainant to avail the remedy of showing cause

before the Secretary who incidentally had kept the matter pending without taking any decision

apparently noticing pendency of the civil suit. The pendency of the suit could not have resulted

in the statutory authority putting off taking a decision on the objection submitted by the third

respondent pursuant to the notice and the provisional order. Under S. 235W of Kerala Panchayat

Raj Act, 1994 a decision had to be taken.




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II. Antony K.P. v. Chellanam Grama Panchayath and Ors

1. State- Kerala

2. Court- In The High Court of Kerala

3. Bench- Single judge

4. Name of Bench- S. Siri Jagan, J.

5. Case No.- WP (C) No. 4282 of 2009 (I)

6. Name of the Case – Antony K.P. v. Chellanam Grama Panchayath and Ors


8. Appellant- Antony K.P.

9. Respondent- Chellanam Grama Panchayath and Ors



a. Whether, Ext. P3 (cancellation of building permit issued to 4th respondent) was

Appealable order under Section 276(5) of the Act?

b. Whether, Tribunal had exceeded his jurisdiction in setting aside resolution in Appeal

against Ext. P3?

c. Whether, failure to challenge Ext. P2 (resolution to confirm the decision to cancel Ext

PI building permit) was fatal to Appeal of 4th Respondent and if so, whether the

Tribunal’s order becomes vitiated or unenforceable?

12. Grounds of Challenge – Overstepping of Jurisdiction by the Tribunal


• Reliance Infocom Ltd. v. Chemanchery Grama Panchayat 2006(4) KLT 695

• State of W.B. v. M.R. Mondal and Anr. (2001) 8 SCC 443

• Municipal Corporation of Delhi v. Quimat Rai Gupta and Ors. (2007) 7 SCC 309

• State of Punjab v. Amar Singh Harika AIR 1966 SC 1313

• State of Punjab v. Khemi Ram (1969) 1 SCC 28


15. Area of Dispute Category – Dispute over ownership of buildings and lands

16. Provisions of Law Involved- Kerala Panchayat Raj Act, 1994 - Section 4, Kerala

Panchayat Raj Act, 1994 - Section 5, Kerala Panchayat Raj Act, 1994 - Section 156(1), Kerala



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Panchayat Raj Act, 1994 - Section 156(5), Kerala Panchayat Raj Act, 1994 - Section 166, Kerala

Panchayat Raj Act, 1994 - Section 179 (5), Kerala Panchayat Raj Act, 1994 - Section 182,

Kerala Panchayat Raj Act, 1994 – Section 185B, Kerala Panchayat Raj Act, 1994 - Section 191,

Kerala Panchayat Raj Act, 1994 – Section 191(3), Kerala Panchayat Raj Act, 1994 - Section

271, Kerala Panchayat Raj Act, 1994 -Section 276, Kerala Panchayat Raj Act, 1994 - Section

276(5);Constitution of India - Article 21, Constitution of India - Article 243G; Constitution

(Seventy third Amendment) Act, 1992 ;Kerala Tribunal for Local Self Government Institutions

Rules, 1999 - Rules 16, Kerala Tribunal for Local Self Government Institutions Rules, 1999 -

Rules 17, Kerala Tribunal for Local Self Government Institutions Rules, 1999 - Rules 18, Kerala

Tribunal for Local Self Government Institutions Rules, 1999 - Rules 20, Kerala Tribunal for

Local Self Government Institutions Rules, 1999 - Rules 22; Municipality Act ;Municipality

Rules ;Kerala Municipal Building Rules, 1999 ;Coastal Zone Regulations

17. Gist of Case-

The 4th respondent (R4) was a service provider for mobile phone users. The building permit

was granted to R4 by the Secretary of Panchayat (R2) for constructing a telecommunication

tower for installation of a Mobile Base Station. Later, the Panchayat committee cancelled the

permit By Ext P3. R4 was directed to stop the construction of the tower with a caution that if

they do not, they alone would be responsible for the law and order situation that may arise if

the construction was continued. The Panchayat Committee again adopted Ext P2 resolution to

confirm Ext P3. However, this was not communicated to the R4. The Ext P3 was challenged

by R4 before the Tribunal for Local self Government Institutions. While this appeal was

pending, Chairman of an action council (R2) claimed a mandamus to the Panchayat to

implement Ext. P2 resolution of the Panchayat. While that writ petition was pending, Tribunal

passed Ext. P7 order setting aside the Ext. P3 consequential order.


The court held that Ext. P3 could certainly be construed as action of President referable to

Sub-sections (1) and (5) of Section 156 of the Act. Also, no procedure was adopted to

communicate a resolution of Panchayat to affected party. Therefore, Ext. P3 was Appealable

before Tribunal under Section 276(5) of the Act. It was held that Ext. P3 had no separate

existence from resolution and Ext. P3 was formal communication of decision of Panchayat

directing R4 to stop construction in accordance with the decision of the Panchayat. As there



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was no procedure of issuing resolution itself to affected party so, affected party could

challenge only formal communication of decision of Panchayat. Moreover, the Tribunal did

have powers to set aside resolution on basis of which Ext. P3 was issued. Therefore, Tribunal

had not exceeded his jurisdiction. Further the court held that Ext. P2 was not fresh action of

Panchayat, which requires to be challenged separately. It was only statutory reiteration of

earlier resolution in view of request of Secretary to Review the same as provided under

proviso to Section 182(iii) of the Act. Therefore, challenge against original decision

independently was maintainable and once that decision was set aside by the Tribunal, the

latter decision automatically ceases to be operative even without separate challenge to it.

Thus, there was no sustainable ground on which Panchayat Committee could have interfered

with it therefore, annulling of resolution of Panchayat and direction issued by President to R4

by Tribunal could not be faulted and thus, resolutions of Panchayat were unsustainable.


Powers of the Panchayat Committee are only in a limited sphere and in exercise of such

powers, the Panchayat Committee cannot, as a superior body, scrutinize every statutory

function of the Secretary, other than in exercise of its appellate powers conferred as per

statute. If the Secretary exercises his powers within the four corners of the statute; then the

Panchayat Committee cannot interfere with it, except in an appeal as provided under the

Kerala Panchayat Raj Act, 1994.

20. Obiter Dicta-

As an institution of self-Government, subject, of course, to the restrictions imposed by the

Act, the Grama Panchayat should be the repository of all original powers in respect of the

functions of the Panchayat. Like in the case of a democratic Government, the ultimate power

should vest with the Panchayat Committee. Therefore, like a legislature the Panchayat

Committee should have powers to annul the action of the executive by a legislative process,

which in the case of a Panchayat is passing of a resolution by the Committee.



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III. Beena Jolly v. State of Kerala and Ors.

1. State- Kerala

2. Court- In The High Court of Kerala at Ernakulam


4. Name of Bench- Ashok Bhushan, C.J. and A.M. Shaffique, J.

5. Case No.- W.A. No. 1712 of 2015 in WP(C) 15488/2015 and W.A. No. 1979 of 2015

6. Name of the Case – Beena Jolly v. State of Kerala and Ors.


8. Appellant- Beena Jolly

9. Respondent- State of Kerala and Ors.



a. Whether there is a violation of Section 157(3) of the Kerala Panchayat Raj Act, 1994?

12. Grounds of Case Challenge-

Violation of 157(3) of the Kerala Panchayat Raj Act, 1994


• Haresh Dayaram Thakur v. State of Maharashtra and Others 2000 (3) SCR 1140;

• P. Venkata Somaraju and Ors. v. Principal Munsif-Magistrate, Bhimavaram, West

Godavari Dist. and Ors. AIR 1968 AP 22;

• Mohan Lal Tripathi v. District Magistrate, Rae Bareilly and others 1993 AIR 2042, 1992

SCR (3) 338;

• Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya Pradesh 1953 AIR 394, 1953

SCR 1188;

• Deep Chand v. The State of Rajasthan 1961 AIR 1527, 1962 SCR (1) 662;

• Banarsi Dass v. Brig. Maharaja Sukhjit Singh and Anr. 1997 Supp(4) SCR 580;

• Babu Verghese & Ors. v. Bar Council of Kerala & Ors. 1999 (3) TMI 628;

• Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors. (2003) 2 SCC 111;

• Ramchandra Keshav Adke (Dead) by Lrs. and Ors. v. Govind Joti Chavare and Ors. AIR

1975 SC 915;

• Shamin Sainudheen v. Medical Council of India 2010 (4) KLT 103



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14. Area of Dispute Name – Removal and no confidence motion

15. Area of Dispute Category – Inappropriate conduct of Sarpanch and/or members

16. Provisions of Law Involved - Kerala Panchayat Raj Act, 1994 - Section 157, Kerala

Panchayat Raj Act, 1994 - Section 157 (3), Kerala Panchayat Raj Act, 1994 - Section

157(4)

17. Gist of Case-

The appellant was working as an elected President of the Karimannoor Grama panchayat. A no

confidence motion against the appellant was given by requisite number of elected members, to

the Block Panchayat Secretary. The Secretary of the Block Panchayat issued a notice for a

special meeting for considering the motion. On receiving the notice, the appellant sent a letter to

the Secretary of the Block Panchayat to adjourn the meeting to another date as she was unwell.

The Secretary did not accede to the request of the petitioner. The appellant/petitioner filed a Writ

challenging the notice for convening the meeting. The Court passed an interim order to put a

temporary stay on holding the meeting till 9.6.2015. The Writ Petition was ultimately dismissed

on 26.6.2015 against which judgment, the present appeal was filed.


The court held that no error was committed by the respondent in awaiting the final judgment

of the court for convening the meeting, although the interim order was not extended with

effect from 9.6.2015. The procedure adopted by the respondent did not violate any statutory

provision and no infirmity was found by issuing notice on 15.7.2015 for convening meeting

on 27.5.2015. What is required by Section 157(4) of the Kerala Panchayat Raj 1994 Act is

that the officer referred to in subsection (2) “shall send by registered post to the elected

members notice of not less than seven clear days of the meeting.” In the present case,

according to the petitioner’s own case, notice was sent on 15.7.2015. The meeting having

been convened on 23.7.2015, there was clear seven days notice given to the members, even if

both days, i.e., 15th and 23rd July, 2015 are excluded. Thus, in view of these discussions the

court did not find any error in the notice dated 15.7.2015 and the convening of meeting on

23.7.2015. No error could either be pointed out by learned counsel for the appellant in the

judgment dated 26.6.2015 as well as in the judgment dated 21.8.2015, which are impugned in

the present appeals. Writ appeal dismissed.




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There was no requirement of any fresh notice for moving a no confidence motion by the

members under Section 157 of the Kerala Panchayat Raj Act, 1994.

20. Obiter Dicta-

Adjourned meeting is treated as continuation of the earlier meeting and there is no legal

impediment for convening the adjourned meeting.



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IV. Dharmadom Paristhithi Samrakshna Samiothi v. The Dharmadom

Gramapanchayath & Another

1. State- Kerala



4. Name of Bench- Antony Dominic, J.

5. Case No.- W.P. (C) No. 15755 of 2009 (L)

6. Name of the Case – Dharmadom Paristhithi Samrakshna Samiothi v. The Dharmadom

Gramapanchayath & Another


8. Appellant- Dharmadom Paristhithi Samrakshna Samiothi

9. Respondent- The Dharmadom Gramapanchayath & Another

10. Case Type-W.P


a. Whether there is a violation of Section 157(3) of the Kerala Panchayat Raj Act?

12. Grounds of Case challenge- Violation of Section 157(3) of the Kerala Panchayat Raj

Act





Kerala Panchayat Raj Act, 1994 - Section 166, Kerala Panchayat Raj Act, 1994 - Section 182,

Kerala Panchayat Raj Act, 1994 - Section 185B, Kerala Panchayat Raj Act, 1994 - Section 235,

Kerala Panchayat Raj Act, 1994 - Section 235F, Kerala Panchayat Raj Act, 1994 - Section

235G, Kerala Panchayat Raj Act, 1994 - Section 235I, Kerala Panchayat Raj Act, 1994 - Section

235J, Kerala Panchayat Raj Act, 1994 - Section 235K, Kerala Panchayat Raj Act, 1994 - Section

235L, Kerala Panchayat Raj Act, 1994 - Section 235N, Kerala Panchayat Raj Act, 1994 –

Section 235O, Kerala Panchayat Raj Act, 1994 - Section 235P, Kerala Panchayat Raj Act, 1994

– Section 235X

17. Gist of Case-



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The 2nd

Respondent (R2) was a Company incorporated under the Companies Act. They

submitted an application to the Panchayat (R1) for obtaining a building permit for the

construction of a multi storied apartment complex. By a resolution, the Panchayat Committee

decided not to grant permit applied as it might cause water shortage in the area. Contrary to the

resolution the Secretary of the Panchayat issued building permit. Subsequently, R1 passed a

resolution to cancel the permit. Aggrieved by this R2 filed an Appeal before the Tribunal for

Local Self Government Institutions, The Tribunal heard the appeal and held that the power to

grant building permit is within the exclusive power of the Secretary of the Panchayat, and the

Committee of the Panchayat has no original or appellate power in so far as this issue was

concerned. On that ground, Tribunal held the proceedings of the Secretary to be invalid.

Tribunal also found that the cancellation of resolution of grant of building was alien to Rule 16

of the Kerala Municipality Building Rules.


The court held that Section 235 F of the Kerala Panchayat Raj Act, 1994 provides that an

application to construct or reconstruct a building shall be sent to the Secretary. Section 235 K

provides for reference to the Village Panchayat in the event the Secretary delays orders on an

application made under Section 235 G beyond 30 days period provided under Section 235 I or J.

By virtue of the provisions contained in Chapter XXI, power to consider and pass orders on an

application for building permit is exclusively conferred on the Secretary of the Panchayat. The

Committee of the Panchayat gets jurisdiction to consider an application only in a case where

reference is made to it under Section 235 K, If power is conferred on the Secretary, the same has

to be exercised in the manner as provided under Section 185 B, which has to be done

independently and solely by him and without any interference or influence by the Panchayat, the

President or Chairman of the Standing Committee. The court thus held that the Village

Panchayat cannot act in an arbitrary manner without following the natural justice principle. The

writ petition was dismissed.


Rule 16 of the Kerala Municipality Binding Rules also confers power on the Secretary himself to

suspend or cancel building permit and the grounds on which such power can be exercised are

also enumerated in the Rule itself. A comparison of the Rule with Exts. P1 and P4 show that the

grounds mentioned in Exts. P1 and P4 do not find place in Rule 16.



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V. George Varghese v. State of Kerala

1. State- Kerala



4. Name of Bench- K.M. Joseph, J.

5. Case No.- W.P. (C) No. 30845 of 2005

6. Name of the Case – George Varghese v. State of Kerala


8. Appellant- George Varghese

9. Respondent- State of Kerala

10. Case Type-W.P


a. Whether, the Clause 6, 7 and 23 of the Circular had contravened Section 162(2) of the

Kerala Panchayat Raj Act, 1994?

12. Grounds of Challengee- Contravention of Section 162(2) of the Kerala Panchayat Raj

Act, 1994

13. Reference taken from the case- None

14. Area of Dispute Name - Responsibilities

15. Area of Dispute Category- Dispute on Responsibilities of ZP/BP/Gp and the State


Kerala Panchayat Raj Act, 1994 - Section 162, Kerala Panchayat Raj Act, 1994 - Section 162(2),

Kerala Panchayat Raj Act, 1994 - Section 162(3), Kerala Panchayat Raj Act, 1994 - Section 162

(5), Kerala Panchayat Raj Act, 1994 - Section 162(7), Kerala Panchayat Raj Act, 1994 – Section

188, Kerala Panchayat Raj Act, 1994 - Section 189, Kerala Panchayat Raj Act, 1994 – Section

191

17. Gist of Case-

The Writ Petitioner was the President of the third respondent Block Panchayat. He challenged

Clauses 6 & 7 of Ext. P2 as ultra vires Section 162(2) of the Kerala Panchayat Raj Act, 1994. A

declaration was also sought that Clause 23 of Ext. P2 was ultra vires Section 162(3) of the Act,

to quash Ext. P4 and to declare that the decision taken in Ext. P1 is legal. It was the case of the



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petitioner that the Panchayat determined the number of Members to its Standing Committees

vide Ext. P1. Ext. P3 was a notice issued by the petitioner for convening a meeting to conduct

election of Members to the three Standing Committees on 5.11.2005. By Ext. P4, however, the

second respondent issued notice to the Secretary of the Panchayat for determining the number of

Members of each Standing Committee in accordance with Ext. P2 Circular.

According to the petitioner the determination of the number of Members in each Standing

Committee should be after excluding the President and Vice President. Thus, the determination

of the number of Members of the Standing Committee of the Panchayat is to be 4 + 3 + 3, as

excluding the President and Vice President, there are ten Members. The Vice President, under

the Act, will become the Ex-Officio Member of the Finance Committee and he will be the

Chairman of the said Committee also. He also contended that based on Sub-section (2) of

Section 162, the number determined after excluding the President and Vice President-shall be as

far as possible equal. He pointed out that this equality is to be predicated among Members

elected after excluding the President and Vice President, and further there is no provision in the

Act to re-determine the number of Members already determined under Section162(2) of the Act.


The court held that as per Section 162 (2) of the Act, number of Members of Standing

Committees could be determined after excluding President and Vice President. However, Clause

(6) of Circular provides for exclusion of President, but inclusion of Vice President of Committee

that number of Members could be elected to Standing Committee could be decided. Since,

provision was in conformity with first part of Section - Clause (6) provided for after inclusion of

Vice President that one could determine number of Members to be elected to Standing

Committee in equality therefore, equality was predicated as between “Members elected to each

Committee”, who could not include either President or Vice President, to the extent, Circular

was ultra vires Section 162(2). On other hand, method provided in Clause (7) for working out

principle of equality, could be dubbed as ultra vires, as it takes in Chairman, for purpose of

determining number of Members of Standing Committees and then provided for equality in first

place by distributing Members among various Committees in an equal manner. The court finally

held that the Act shall be ultra vires if it breaches mandatory provisions of the Statute. The

petition was dismissed.




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Section 188 of the Kerala Panchayat Raj Act, 1994 provides power with the Government or

any Officer empowered by the Government in this behalf, inter alia, to record in writing for

the consideration of any Panchayat any observations in regard to the proceedings or the duty

of the Panchayat. Government is also empowered under Section 191 to cancel or vary a

resolution passed or a decision taken by the Panchayat, if it is in their opinion, not legally

passed or taken or in excess of the powers. Under Section 189, Government has power to

issue general guidelines to the Panchayat in regard to the matters stated therein alone.




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VI. K.P. Wilson v. Kozhinjampara Grama Panchayath and Ors.

1. State- Kerala

2. Court- In The High Court of Kerala at Ernakulum


4. Name of Bench- A.V. Ramakrishna Pillai, J.

5. Case No.- W.P.(C) Nos. 10575 of 2014 (V) and 12896 of 2013

6. Name of the Case – K.P. Wilson v. Kozhinjampara Grama Panchayath and Ors.


8. Appellant- K.P. Wilson

9. Respondent- Kozhinjampara Grama Panchayath and Ors.

10. Case Type-W.P


Whether as per the proviso to Section of 233(4)(c) of the Kerala Panchayat Raj Act, 1994 , the

Panchayat has jurisdiction to insist the NOC of the District Medical Officer ,once the ‘consent to

operate’ is issued by the Pollution Control Board?


Jurisdiction of Panchayat to insist the NOC of the District Medical Officer once the ‘consent to

operate’ is issued by the Pollution Control Board.




Dispute among Panchayats and between Panchayats and State Agencies


Panchayat Raj Act, 1994 – Section 233(4) (b)(c), Kerala Panchayat Raj Act, 1994 - Section

233(4)(c), Kerala Panchayat Raj Act, 1994-Section 233(a).

17. Gist of Case-

The grievance of the petitioner was that the respondent Panchayat had not considered the

application submitted by him for renewal of his existing licence to run a bone processing unit,

despite the specific direction given by the Court in the judgment in W.P (C) No. 1920 of 2012.

According to the petitioner, the respondent Panchayat was refusing to consider his renewal



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application on the ground that he had failed to produce No Objection Certificate (NOC) from the

District Medical Officer, which according to him, is not required for renewal of the licence.

Petitioner was conducting a bone crushing unit and had submitted application for renewal of his

licence. Pollution Control Board had issued consent to operate the unit to the petitioner.

Petitioner contended that NOC of D.M.O. was not required for renewal of the licence in the light

of the permission granted by the Pollution Control Board.


The court held that the sec 233(b) makes it clear that no report shall be called for in respect of

any industry, if the applicant had produced a declaration recommended by an officer of the

Industries Department authorized on his behalf or by the Pollution Control Board to the effect

that such industry would not cause pollution. The petitioner had the valid ‘consent to operate’

issued by the Pollution Control Board. Therefore, the respondent Panchayat was statutorily

prevented from seeking NOC of the District Medical Officer. Also as far as the industrial

pollution was concerned, the competent authority is the 3rd

Respondent who was vested with

powers to ascertain whether a particular industrial unit caused environmental pollution or not.

Therefore, the Court decided that order issued by the 1st Respondent and direction issued by the

2nd

Respondent were not legally sustainable and they should not be allowed to stand.

Court also directed the Kerala Pollution Control Board to inspect the factory so that no

environmental pollution is caused and if it is found that any nuisance is caused above the

tolerance level then the Panchayat may proceed against the petitioner under Section 233(a) of

the Act.


It is clear from the proviso of section 233 of the Kerala Panchayat Raj Act that no report under

clause (b) shall be called for in respect of any industry, if the applicant produces a declaration

recommended by an officer of the industries Department authorised on his behalf or by the

Pollution Control Board to the effect that such industry would not cause pollution.




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VII. Kadaplamattom Grama Panchayat v. Johny Roy

1. State- Kerala



4. Name of Bench- Dr. Manjula Chellur, C.J. and A.M. Shaffique, J.

5. Case No.- W.A. Nos. 250 and 1200 of 2012

6. Name of the Case – Kadaplamattom Grama Panchayat v. Johny Roy


8. Appellant- Kadaplamattom Grama Panchayat

9. Respondent- Johny Roy



a. Whether the issuance of license under the provisions of Kerala Panchayat Raj (Issue of

License to Dangerous and Offensive Trades and Factories) Rules 1996 and to pass orders on

the application for license to operate a quarry, without reference to the resolution passed by

the Panchayat under S. 233 is valid?


Issuance of license under the provisions of Kerala Panchayat Raj (Issue of License to

Dangerous and Offensive Trades and Factories) Rules 1996.


• Dharmadom Paristhithi Samrakshna Samiothi v. The Dharmadom Gramapanchayath


15. Area of Dispute Category- Disputes among Panchayats and between Panchayats and

Other State Agencies


Kerala Panchayat Raj Act, 1994 - Section 166(1), Kerala Panchayat Raj Act, 1994 – Section

185B, Kerala Panchayat Raj Act, 1994 - Section 232, Kerala Panchayat Raj Act, 1994 – Section

232(1), Kerala Panchayat Raj Act, 1994 - Section 233, Kerala Panchayat Raj Act, 1994 - Section

233(3), Kerala Panchayat Raj Act, 1994 - Section 235(F), Kerala Panchayat Raj Act, 1994 -



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350

Section 235(H), Kerala Panchayat Raj Act, 1994 - Section 235(P), Kerala Panchayat Raj Act,

1994 - Section 235(Q).

17. Gist of Case-

The Writ Petition was filed by the Respondent as he was aggrieved by the rejection of his

application to establish a quarry within the appellant Panchayat. The application was rejected by

the Panchayat as it took a decision to not to grant license to new quarries as it would affect

public health in the locality, agricultural operations and the water resources. The learned Single

Judge allowed the writ petition observing that the statutory authority was to issue the licence and

they could not dictate the Village Panchayat. Aggrieved by the Judgment, the Panchayat

preferred the writ appeal.


The Division Bench after careful scrutiny of the relevant provisions of the Kerala Panchayat Raj

Act and Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories)

Rules especially sections 232, 233 and the D & O rules held that the when a composite

application is submitted by a person under sections 232 and 233, a decision to grant a license or

permission under S. 233 is to be taken by the Village Panchayat and the decision to issue license

under S. 232 is to be taken by the Secretary. If the Panchayat decides not to grant permission

under S. 233 then Secretary cannot separately consider the application under S. 232 read with

D&O rules. Whereas if an application is submitted by a person only under S. 232 of the Act read

with D&O Rules, and permission under S. 233 is not required, the Secretary is competent to

consider the application and pass appropriate orders.


If the application is filed for establishing a unit which does not come under S. 233 of the Kerala

Panchayat Raj Act and if it comes only under S. 232 of the Act, or under R. 12(3)(d) of the D &

O rules, the license is to be issued only by the Secretary. In the light of the specific conferment

of power on the Secretary to issue license in regard to establishments coming purely under S.

232 of the Act read with D&O rules, even if it is stated in the rules that the President is

empowered to issue such a license, the rules have to be read as if the power is vested under R. 6,

7, 8 and 11 on the Secretary of the Village Panchayat.



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20. Obiter Dicta:

In a case where an application is filed by a person seeking to establish a factory, workplace or

other establishments, the said application cannot be summarily rejected by stating that the

Panchayat has taken a policy decision not to permit any such establishments in the Panchayat

area.



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VIII. The Chief Secretary to Government, The Executive Engineer and The

Superintendent of Police (Rural) v. Khalid Mundappilly

1. State- Kerala



4. Name of Bench- C.N. Ramachandran Nair and P.S. Gopinathan, JJ.

5. Case No.- R.P. No. 670 of 2010 in W.P.C. No. 19253 of 2010

6. Name of the Case – The Chief Secretary to Government, The Executive Engineer and

The Superintendent of Police (Rural) v. Khalid Mundappilly


8. Appellant- The Chief Secretary to Government, The Executive Engineer and The

Superintendent of Police (Rural)

9. Respondent- Khalid Mundappilly

10. Case Type- Revision Petition


Whether Panchayat or municipality can grant permission to hold meeting on public

roads and road margins under its control, if such meetings obstruct free flow of traffic?

12. Grounds of Challenge- Power of Municipality to grant permission to hold meeting on

public roads and road margins under its control


• K.K. Road Merchants E.A.R.W.A., T.N. v. District Collector, T.N. (2004) 13 SCC 61;

• Municipal Board, Mangalore v. Mahadeoji Maharaj: AIR 1965 SC 1147;

• Railway Board v. Niranjan Singh: AIR 1969 SC 966;

• Volga Tellis and Ors. v. Delhi Municipal Corporation: AIR 1986 SC 180;

• Himat Lal Sha v. Police Commissioner, Ahmedabad: AIR 1973 SC 87;

• Bharath Kumar v. State of Kerala (1997) 2 K.L.T. 287;

• Communist Party of India v. Bharath Kumar: (1997) 2 K.L.T. 1007 (SC);

• State of Karnataka v. Registrar General, Karnataka High Court: A.I.R. 2000 S.C. 2626;

• Divisional Manager, Aravali Golf Club v. ChanderHass : (2008) 1 SCC 683;

• Bandhua Mukti Moreha v. Union of India: A.I.R. 1984 S.C. 802;



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353

• M.C. Mehta v. Union of India: (1998) 1 SCC 676;

• Sankaranarayanan v. State:A.I.R. 1986 Ker. 82

14. Area of Dispute Name – Others

15. Area of Dispute Category- Disputes among Panchayats and between Panchayat and

State Agencies


Right to Information Act; Kerala Highway Protection Act, 1999 - Section 2, Kerala Highway

Protection Act, 1999 - Section 3, Kerala Highway Protection Act, 1999 - Section 4, Kerala

Highway Protection Act, 1999 - Section 13, Kerala Highway Protection Act, 1999 - Section 15,

Kerala Highway Protection Act, 1999 - Section 16, Kerala Highway Protection Act, 1999 -

Section 44, Kerala Highway Protection Act, 1999 - Section 45, Kerala Highway Protection Act,

1999 - Section 220, Kerala Highway Protection Act, 1999 - Section 252, Kerala Highway

Protection Act, 1999 - Section 364, Kerala Highway Protection Act, 1999 - Section 367(3),

Kerala Highway Protection Act, 1999 - Section 368(1), Kerala Highway Protection Act, 1999 -

Section 368(2), Kerala Highway Protection Act, 1999 - Section 368(3), Kerala Highway

Protection Act, 1999 - Section 368(4); Kerala Munipalities Act; Kerala Panchayatraj Act;

National Highways Act, 1956; Kerala Police Act, 1960 - Section 19, Kerala Police Act, 1960 -

Section 29; Bombay Police Act; Civil Procedure Code (CPC) - Section 114, Bombay Police Act;

Civil Procedure Code (CPC) - Order 47 Rule 1; Indian Penal Code (IPC) - Section 339, Indian

Penal Code (IPC) - Section 341, Indian Penal Code (IPC) - Section 431; Code of Criminal

Procedure (CrPC) - Section 133; Constitution of India - Article 19(1), Constitution of India -

Article 19(2), Constitution of India - Article 21, Constitution of India - Article 226

17. Gist of Case-

The frequent obstruction of the road in front of the Aluva Railway station by the political parties

for public meeting created public inconvenience. A public interest litigation was filed over this

menace.


The court held that for healthy survival of democratic set up, public discussions and meetings

cannot be avoided. But while arranging meetings it should at no cost violate the fundamental

rights of others, especially the freedom of movement. Therefore, it was held that the State cannot



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curtail the freedom of movement of passengers and pedestrians in the name of public meetings.

The Review Petition was dismissed.


Section 19 of the Police Act which is fifty year old now stands in conflict with the provisions of

Kerala Highways Protection Act and the provisions of Municipalities Act and Panchayat Raj Act

which are fairly new legislations which do not confer power on any authority to grant permission

to hold meetings on road and road margins which are essentially meant for vehicular traffic and

for use by pedestrians.

20. Obiter Dicta-

The right to assemble under Article 19(1)(b) of the Constitution does not mean that the right can

be exercised at any and every place.



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IX. Kurian Jose v. Kerala State Financial Corporation

1. State- Kerala



4. Name of Bench- C.N. Ramachandran Nair, J.

5. Case No.- W.P. (C) No. 10871 of 2004

6. Name of the Case – Kurian Jose v. Kerala State Financial Corporation


8. Appellant- Kurian Jose

9. Respondent- Kerala State Financial Corporation

10. Case Type-W.P


Whether the encumbrance referred to in Section 60 of the Kerala Revenue Recovery Act,

1968 takes in statutory charge for property tax covered under Section 203(3) of the Panchayat

Raj Act?


If the encumbrance referred to in Section 60 of the Kerala Revenue Recovery Act, 1968 takes in

statutory charge for property tax covered under Section 203(3) of the Panchayat Raj Act?

13. Reference taken from the case-Nil

14. Area of Dispute Name - Taxes


State Agencies

16. Provisions of Law Involved- Kerala Revenue Recovery Act, 1968 - Section 54, Kerala

Revenue Recovery Act, 1968 – Section 60; Kerala Panchayat Raj Act, 1994 - Section 203,

Kerala Panchayat Raj Act, 1994 – Section 203(3), Kerala Panchayat Raj Act, 1994 - Section 208

17. Gist of Case-

The Petitioner purchased an industrial plot with buildings thereon sold by the K.F.C. in

Revenue Recovery proceedings for recovery of arrears due from the borrower. Even though

the petitioner paid full sale consideration to K.F.C., the Panchayat demanded arrears of

property tax due from the previous owner for the buildings situated therein. The Kerala Water



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Authority also seems to be demanding arrears of water charges payable by the previous

owner. It is against these demands that the Writ Petition was filed.


The court held that there was nothing on record to indicate that there were water arrears due to

the Kerala Water Authority. It was not known to the Court whether the petitioner had obtained

connection from Water Authority under interim order issued by the Court. The petitioner was

directed to approach the Assistant Engineer for him to consider the petitioner’s contentions and

to pass adjudication order on amounts payable and the period to which such arrears relate. It was

left open to the petitioner to clear the arrears or to contest the same in appeal before the

Executive Engineer.


Section 60 of the Kerala Revenue Recovery Act 1968 does not exclude operation of provisions

of other statutes for the property sold in Revenue Recovery proceedings and therefore, the

property sold will be subject to all statutory charges. So much so, the encumbrance referred to in

Section 60 of the Kerala Revenue Recovery Act should take in liabilities other than charge

created by separate statute.




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X. Malankara Plantations Ltd. v. Edavetti Grama Panchayat

1. State- Kerala



4. Name of Bench- Kurian Joseph, J.

5. Case No.- O.P. No. 11003 of 2003

6. Name of the Case – Malankara Plantations Ltd. v. Edavetti Grama Panchayat


8. Appellant- Malankara Plantations Ltd.

9. Respondent- Edavetti Grama Panchayat

10. Case Type- Original Petition


Whether profession tax is to be paid even if there is no income?


Whether profession tax is to be paid even if there is no income.




State Agencies


Kerala Panchayat Raj Act, 1994 - Section 204;; Income Tax Act, 1961; Agricultural Income Tax

Act, 1991 - Section 5;; Agricultural Income Tax Act, 1950 - Section 5; Kerala Panchayat Raj

(Profession Tax) Rules, 1996 - Rules 2, Kerala Panchayat Raj (Profession Tax) Rules, 1996 -

Rules 3, Kerala Panchayat Raj (Profession Tax) Rules, 1996 - Rules 4, Kerala Panchayat Raj

(Profession Tax) Rules, 1996 - Rules 5, Kerala Panchayat Raj (Profession Tax) Rules, 1996 -

Rules 6

17. Gist of Case-

The petitioner contended that during the year 2001-02 and 2002-03 his Company did not have

any income for the purpose of assessment under the Agricultural Income Tax Act and had also

suffered huge loss in business. Since the assessment of income was to be based on the income



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as assessed under the Agricultural Income Tax Act, it was submitted that the petitioner was

not liable to pay profession tax for those years.


The court held that it was stated in the Original Petition that the petitioner Company had

incurred loss during the relevant years. Therefore the Petitioner has to produce the profit and loss

account prepared under the provisions of the Income Tax Act during 2001-02 and 2002-03

and/or under Section 5 of the Agricultural Income Tax Act 1950 before the 1st Respondent (R1)

and on verification of those accounts only if the income as computed under Rule 5(a) is below

Rs. 12,000/- half yearly, then alone it can be said that there is no liability for the petitioner to pay

profession tax. Therefore the court disposed of the petition directing that the Petitioner should

produce the accounts as stated within a period of three months before R1 and on verification of

the accounts for the relevant years R1 would issue fresh orders to the writ petitioner regarding

his liability to pay the tax.


Once a Company or a person is an assessee under the Income Tax or the Agricultural Income

Tax Act, the income is to be calculated on the basis of the profit and loss account under the

provisions of the Income Tax Act or Section 5 of the Agricultural Income Tax Act for the

purpose of computation of Agricultural Income. On such computation if the half yearly income

is below Rs. 12,000/- the Company is not liable to pay profession tax. Only if the half yearly

income is below Rs. 12,000/- then alone there is exemption. That Income is not the next taxable

Income; but income is as per the profit and loss accounts. Rule 5(b) of the Kerala Panchayat Raj

(Profession Tax) Rules, 1996 operates only if the annual income of a Company or a person is not

ascertainable or where the Company or a person is not assessed to income tax or agricultural

income tax. In such a situation, the turnover of the business transaction in the area during the

half year is the criterion and where the turnover also is unascertainable the profit and gains

during the corresponding half year of the previous year should be the basis for the purpose of

calculation of tax.




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XI. Nirmalyam Residency Hotels Pvt. Ltd. v. Alankode Grama Panchayat

1. State- Kerala



4. Name of Bench- Antony Dominic, J.

5. Case No.- W.P. (C) No. 15483 of 2012

6. Name of the Case – Nirmalyam Residency Hotels Pvt. Ltd. v. Alankode Grama

Panchayat


8. Appellant- Nirmalyam Residency Hotels Pvt. Ltd.

9. Respondent- Alankode Grama Panchayat



a. Whether the assignment of building number is under S. 235 of Kerala Panchayat Raj

Act, 1994?

b. Whether an appeal against such an order lies to the Panchayat as provided under

S. 276(1) of Kerala Panchayat Raj Act, 1994?

12. Grounds of Challenge- Legality of assignment of building number is under S. 235 of

Kerala Panchayat Raj Act, 1994.



15. Area of Dispute Category - Dispute among Panchayats and between Panchayats and

State Agencies


Panchayat Raj Act, 1994 - Section 235J, Kerala Panchayat Raj Act, 1994 - Section 235N, Kerala

Panchayat Raj Act, 1994 – Section 235W, Kerala Panchayat Raj Act, 1994 - Section 235X,

Kerala Panchayat Raj Act, 1994 - Section 276, Kerala Panchayat Raj Act, 1994 - Section 276(1)

17. Gist of Case-

The petitioner on the permission of 1st Respondent (Panchayat) completed the construction of a

hotel building. Some complaints were made by the 3rd Respondent (R3). Accordingly the



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Secretary inspected the building and thereafter on noticing that no irregularity was committed in

the construction, assigned a number to the building in question in terms of the provisions

contained in S. 235 of the Kerala Panchayat Raj Act. Thereupon R3 filed an appeal to the

Committee of the Panchayat seeking cancellation of the building number. The Committee

entertained the appeal and passed an order of stay of the steps taken by the Secretary to number

the building. At that stage, the petitioner approached the Court by filing WP(C) No. 13174/12.

That Writ Petition was disposed of by Ext. P11 judgment directing the petitioner to file his

objections to the appeal and that if such an objection is filed, the R1 should decide on the

maintainability of the appeal as a preliminary issue. Accordingly, petitioner filed his objections,

parties were heard and by Ext. P14 and Ext. R1(1), the Panchayat held the appeal maintainable

before it. This order was passed overruling the objection of the petitioner that the appeal could

have been filed only before the Tribunal in view of Rule 151 of the Kerala Panchayat Building

Rules, 2011. In this Writ Petition, the petitioner challenged the Ext. P14.


The court held that assigning number to a building was done by the Secretary in terms of S. 235.

In so far as Rule 151 of the Building Rules is concerned, that Rule provides that any person

aggrieved by an order passed by the Secretary may submit an appeal to the Tribunal for Local

Self Government Institutions. Obviously the order passed by the Secretary must be one under the

Rule, and in the present case the action taken by the Secretary does not fall under any of the

provisions of the Rules. It was held that the assignment of building number is under S. 235 of the

Kerala Panchayat Raj Act and an appeal against such an order lies to the Panchayat as provided

under S. 276(1).


Assignment of number to a building is done by the Secretary in terms of S. 235 of Kerala

Panchayat Raj Act, 1994. A reading of S. 276(1) shows that action taken under S. 235 is

appealable to the Panchayat since it does not fall under any of the exempted categories.




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XII. Onset Developers v. Secretary, Akathethara Grama Panchayat and Ors.

1. State- Kerala

2. Court- High Court Of Kerala At Ernakulam


4. Name of Bench- Dama Seshadri Naidu, J.

5. Case No.- W.P.(C). No. 33233 of 2014 (D)

6. Name of the Case - Onset Developers v. Secretary, Akathethara Grama Panchayat and

Ors.


8. Appellant- Onset Developers

9. Respondent- Secretary, Akathethara Grama Panchayat and Ors.



a. Whether the order is ultra vires of the second respondent Grama Panchayat? Whether the

writ is barred in terms of Section 182 of the Kerala Panchayat Raj Act, 1994 on the principle of

alternative remedy?

b. Whether the Sub-Section 4 of Section 48 of the Karnataka Panchayat Raj (Motion of no-



12. Ground of Challenge-

If the writ is barred in terms of Section 182 of the Kerala Panchayat Raj Act, 1994 on the

principle of alternative remedy and if Sub-Section 4 of Section 48 of the Karnataka Panchayat

Raj (Motion of no-confidence against Adhyaksha or Upadhyaksha of Grama Panchayat) Rules,

1994, and Section 49 of the Karnataka Panchayat Raj Act, 1993 are independent of each other.


• Dharmadom Paristhithi Samrakshna Samiothi v. The Dharmadom Gramapanchayath &

Another


15. Area of Dispute Category- Dispute over ownership of Building and Lands




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362


Kerala Panchayat Raj Act, 1994 - Section 185B, Kerala Panchayat Raj Act, 1994 - Section

235C, Kerala Panchayat Raj Act, 1994 - Section 235J, Kerala Panchayat Raj Act, 1994 - Section

235K

17. Gist of Case-

The petitioner filed an application for a building permit but it was returned on the ground that

the land proposed to be constructed upon, comprised wetland in part. Aggrieved thereby, the

petitioner filed the Writ Petition, through which the Court set aside the order of the Secretary

and directed the said authority to consider the petitioner’s application afresh, without

reference to the issue of wetland in terms of Kerala Conservation of Paddy Land and Wetland

Act, 2008. After complying with all other statutory parameters, the petitioner resubmitted his

application to the first respondent, who in turn issued certificate proposing to approve the

building permit on the condition of the technical clearance from the Assistant Engineer of the

Local Self Government Institutions. After the technical clearance was granted, the

Respondent 2, the Committee of Grama Panchayat passed a resolution interdicting the permit

proposed to be granted by the Respondent 1 on the ground that this construction would lead to

traffic jams, drinking water pollution, and other health hazards. Thus the Respondent 1, in

turn, based on resolution passed by the Respondent 2, issued order proceedings rejecting the

petitioner’s application for building permit. Therefore the petitioner filed the present writ

petition.


The court held that in Dharmadom Paristhithi Samrakshana Samithi v. Dharmadom Grama

Panchayat power to consider and pass orders on application for building permit exclusively

resides with Secretary of Panchayat. The Committee of Panchayat gets jurisdiction to consider

application only in case where reference was made to it under Section 235K of the Act.

Therefore in the view of settled legal position, the impugned order was held to be ultra vires and

thus set aside. The Respondent 2 was further directed to consider the Petitioner application

afresh and to pass appropriate orders thereon.


On an issue attacked on the ground of ultra vires, the principle of alternative remedy is no

constraint for a public law remedy



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363

20. Obiter Dicta-

Section 166 of the Kerala Panchayat Raj Act, 1994 deals with the macro functions of the Grama

Panchayat, and the legislative intention is couched in mandatory terms. Indeed, though the

exercise of the powers enumerated in the III schedule is subject to the provisions of the Act, it

cannot, however, be said that such discharge of mandatory functions as have been enumerated is

contingent upon the Grama Panchayat issuing a notification under Section 235C of the Act.



717

364

XIII. Pappinissery Visha Chikilsa Society v. State of Kerala

1. State- Kerala



4. Name of Bench- K. Thankappan, J.

5. Case No.- O.P. No. 2149 of 1998

6. Name of the Case – Pappinissery Visha Chikilsa Society v. State of Kerala


8. Appellant- Pappinissery Visha Chikilsa Society

9. Respondent- State of Kerala



Whether the act of the petitioner covers “show” under section 200 (4) (1) of the Kerala



If the act of the petitioner covers “show” under section 200 (4) (1) of the Kerala Panchayat

Raj Act, 1994.


• His Highness Maharaja of Jaipur Museum Trust, City Palace, Jaipur v. The State of

Rajasthan and Anr., 1972 Tax. L.R. 2428;

• Veega Holidays and Parks P. Ltd. v. Kunnathunad Grama Panchayat and Ors., 2003 (3)

KLT 442, 2003 (2) KLJ. 688



State Agencies


Kerala Panchayat Raj Act, 1994 - Section 200(4)(1); Kerala Municipalities Act

17. Gist of Case-

The petitioner was a society registered under the Societies Registration Act, 1860. The

petitioner society had established a snake park in 1980 in Parassinikkadavu for treatment



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purposes and to educate people about the reptiles, birds etc. Considering the educational and

charitable purpose for which it was established the Panchayat exempted the Petitioner from

payment of show tax/entertainment tax. However, the Panchayat later withdrew the exemption

and decided to impose tax on the company. The appeal and Revision petition filed by the

Petitioner were dismissed by the Panchayat. Aggrieved by the same, the Original Petition was

filed. The Petitioner contended that it was not liable to pay show tax as there was no

entertainment programme and that the amount charged from the public was utilised for daily

expenses. The Respondents contended that the Petitioner is conducting the show of snakes and

other reptiles by collecting admission fee by selling tickets to the general public therefore he

was liable to pay tax.


The court held that the term “show” is defined in Chambers Twentieth Century Dictionary thus:

to present to view; to exhibit; to display; to set forth; to cause or allow to be seen or known; to

prove; to manifest; to indicate; to usher of conduct (within, out over, round, up). Further the term

“show” connotes an element of performance like singing or such other activities. Thus the court

did not find it suitable to hold that the Petitioner is liable to pay show tax.


The court relied on the judgment of the Rajasthan High Court in His Highness the Maharaja of

Jaipur Museum Trust, City Palace, Jaipur v. The State of Rajasthan and Anr., (1972 Tax. L.R

2428), wherein the fees levied by the museum for the purpose of meeting the maintenance

charges etc. could not be taxed under the Act. Reliance was also placed on the decision of the

Kerala High Court in Veega Holidays & Parks P. Ltd. v. Kunnathunad Grama Panchayat Ors.

[2003(2) K.L.J. 688] wherein it was held that the appellant company, which was running an

'Amusement Park' was not liable to pay 'Entertainment Tax' to the respondent Panchayat.




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XIV. Roy v. Ayavana Grama Panchayat

1. State- Kerala




5. Case No.- W.P. (C) No. 34866 of 2014

6. Name of the Case – Roy v. Ayavana Grama Panchayat


8. Appellant- Roy

9. Respondent- Ayavana Grama Panchayat

10. Case Type- W.P


a. Whether the petitioner ought to have proceeded, before approaching this Court under

S.276?


If the petitioner ought to have proceeded, before approaching this Court under S.276.


• Onset Developers v. Secretary, Akathethara Grama Panchayat and Ors. WP(C).No.

33233 of 2014 (D);

• Anirudhsinhji Jadeja and another v. State of Gujarat 1995 AIR 2390, 1995 SCC (5) 302;

• State of Uttar Pradesh and Ors. v. Maharaja Dharmander Prasad Singh and Ors. 1989

AIR 997, 1989 SCR (1) 176



State Agencies

16. Provisions of Law Involved- Kerala Panchayat Raj Act, 1994 - Section 232, 276

17. Gist of Case -

The petitioner ran a stone quarry for the past 23 years, the last valid period of licence being till

2011-2012. In course of time, the 2nd

Respondent (R2), the Secretary of the 1st Respondent



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(R1) Gram Panchayat, issued notice to the petitioner to close down the quarry on the ground

that there had been erosion of soil. Aggrieved by the same, the petitioner filed a statutory

Appeal before the Tribunal which was eventually dismissed. Further aggrieved, when the

petitioner filed Writ Petition the Court disposed it off directing R2 to consider the petitioner's

application untrammeled by any of the observations made in the previous proceedings

between the parties. Pursuant to the direction of the court the petitioner submitted application

before the second respondent. After issuing notice under Exhibit P11 for hearing and also after

receiving Exhibit P12 argument note submitted by the petitioner, the second respondent

eventually passed Exhibit P13 order rejecting the petitioner's application for renewal of

licence. Assailing Exhibit P13, the petitioner filed the present Writ Petition.


The court held that to meet the ends of justice R2 should consider the issue afresh without

reference to any further instructions or directions from any other official of the Grama

Panchayat. Also, R2 was asked to provide opportunity of hearing to the petitioner and other

stake holders before taking any decision on application. R2 was also directed to take steps to

dispose of the petitioner's application expeditiously within one month from the date of receipt of

a copy of the judgment.


Any interference by a person or body extraneous to the power would plainly be contrary to the

nature of the power conferred upon the authority.




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XV. S.S. Sugil v. K. Sadanandan & Others

1. State- Kerala



4. Name of Bench- Rajeev Gupta & K.S. Panicker Radhakrishnan

5. Case No.- W.A. No. 1583 of 2005

6. Name of the Case – S.S. Sugil v. K. Sadanandan & Others


8. Appellant- S.S. Sugil

9. Respondent- K. Sadanandan & Others

10. Case Type- W.A


a. Whether the appellant can put up a board without the permission of the Panchayat and

not pay the advertisement tax?



• Thomas Kurian v. Joseph Thomas 2002 (2) KLT 625;

• Vimal Arakkal v. Corporation of Cochin 2004 (3) KLT 413

14. Area of Dispute - Others


State Agencies


Kerala Panchayat Raj Act, 1994 - Section 2(iii), Kerala Panchayat Raj Act, 1994 – Section 209,

Kerala Panchayat Raj Act, 1994 - Section 209A, Kerala Panchayat Raj Act, 1994 - Section 209C

17. Gist of Case -

The 2nd Petitioner filed a complaint against 4th Respondent to the Gram Panchayat about the

illegal erection of hoarding by name “Coax Computers” without obtaining necessary permission

from the Panchayat. Objection was taken note of by the Panchayat and it directed Respondents 2

to 4 to remove the Board which was erected without their permission. However no action was



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taken by R4. Hence a writ petition was preferred for removal of the unauthorized advertisement

board installed causing obstruction to writ petitioners who were neighbouring the property.


The court held that Section 2(iii) of the Kerala Panchayat Raj Act, 1994 defines the word

“building” which includes a house, out-house, stable, latrine, shed, hut and any other structure,

whether of masonry, bricks, wood, mud, metal or any other materials whatsoever. It was held

that even for erecting hoarding in private property permission of the local authority was

necessary. Since, no permission had been obtained before erecting the hoarding, there was no

infirmity in the action taken by the Panchayat in directing the appellant to remove the hoarding.


Rule 2(1)(1) of the Kerala Municipality Building Rules defines the expression “building” as any

structure for whatsoever purpose and of whatsoever material constructed and every part thereof

whether used for human habitation or not and includes foundations, plinth, walls, floors, roof,

chimneys, plumbing and building services, verandah, balcony, cornice, or projections, part of a

building or anything affixed thereto or any wall enclosing or intended to enclose any land or

space and signs and outdoor display structures. Consequently, hoarding, falls within the above

mentioned definition clauses contained in the Kerala Panchayat Raj Act as well as in the Kerala

Municipality Building Rules.




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XVI. Thalavoor Grama Panchayat v. Salim

1. State- Kerala



4. Name of Bench- K.A. Abdul Gafoor, J.

5. Case No.- Crl. A. No. 472 of 2000

6. Name of the Case – Thalavoor Grama Panchayat v. Salim


8. Appellant- Thalavoor Grama Panchayat

9. Respondent- Salim

10. Case Type- Crl. Appeal


a. Whether the general rule making power under Section 254 of the Act does not enable the

Panchayat to provide for prosecution to recover bid amount?

12. Grounds of Challenge- If the general rule making power under Section 254 of the Act

does not enable the Panchayat to provide for prosecution to recover bid amount.


• Suresh v. Executive Officer, 1995 (2) KLT 75

14. Area of Dispute – Others


Dispute among Panchayats and between Panchayats and State Agencies



Kerala Panchayat Raj Act, 1994 - Section 254(2), Kerala Panchayat Raj Act, 1994 - Section 284

(2); Kerala Panchayat Act, 1960

17. Gist of Case -

The prosecution initiated by the appellant was because of the default made by the 1st Respondent

in not remitting a portion of the bid amount to occupy a meat stall owned by the Panchayat for a

particular year. The learned Magistrate found that the Panchayat had not substantiated that the

first respondent has committed any offence punishable under Section 210 of the Panchayat Raj



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Act, 1994, as the Panchayat had not provided the slaughter house facilities and did not even

produce the agreement from which the liability to pay the bid amount arises. Assailing the

acquittal, it was submitted that existence of the agreement was admitted by the accused in his

statement under Section 313 Cr P.C. It was submitted that the notification issued in terms of

erstwhile Panchayat Act and the Rules framed there under have been saved in terms of

Section 284(2)(i) of the Kerala Panchayat Raj Act, 1994. Therefore the prosecution was

permissible. On this grievance the appeal was forwarded.


The court held that the rule making power is contained under Section 254 of the Panchayat Raj

Act, 1994 and under Section 210, the Act does not envisage prosecution for default of bid

amount. Therefore, the general rule making power under Section 254 does not enable to provide

for prosecution to recover bid amount. Unfortunately the counsel could not point out any item

under Sub-rule (2) of Section 254 which contains particular provision enabling the Government

to prescribe rules under the new Act providing for prosecution in case of default of payment of

bid amount. Therefore, the said decision was of no avail for the complainant to substantiate his

case in the light of the new enactment. This justified the acquittal. Consequently, the appeal was

dismissed.


Rule making power in Section 254 of the Kerala Panchayat Raj Act, 1994 is a general power.

The rule made under this general power shall be for carrying out any of the purpose of the Act.

Since the Act does not envisage prosecution for default of bid amount, the general rule making

power under Section 254 does not enable to provide for prosecution to recover bid amount.




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XVII. Travancore Rubber and Tea Co. Ltd. v. Peruvanthanam Grama Panchayat

1. State- Kerala



4. Name of Bench- C.N. Ramachandran Nair, J.

5. Case No.- O.P. No. 11105 of 2003

6. Name of the Case – Travancore Rubber and Tea Co. Ltd. v. Peruvanthanam Grama

Panchayat


8. Appellant- Travancore Rubber and Tea Co. Ltd.

9. Respondent- Peruvanthanam Grama Panchayat

10. Case Type- O.P


a. Whether the Panchayat can retrospectively grant licence and demand arrears under Sec

232 and Section Sec 233 of the Act?

12. Grounds of Challenge- If the Panchayat can retrospectively grant licence and demand

arrears under Sec 232 and Section Sec 233 of the Act.


• OEN Connectors Ltd. v. Chottanikkara Grama Panchayat 2007 (4) KLT 342

14. Area of Dispute Name– Others


State Agencies


Panchayat Raj Act, 1994 - Section 233, Kerala Panchayat Raj Act, 1994 - Section 243, Kerala

Panchayat Raj Act, 1994 - Section 245, Kerala Panchayat Raj Act, 1994 - Section 246; Kerala

Panchayat Raj (Compounding of Offences) Rules, 1996

17. Gist of Case -

The petitioner challenged arrears of licence fee claimed by the Panchayat for running a Crumb

Rubber factory within the Panchayat area without licence in terms of Sections 232 and 233 of

the Kerala Panchayat Raj Act, 1994.



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The court held that the licence fee could not be demanded until the Petitioner was given a

licence. Admittedly, prior to or after coming into force of the Kerala Panchayat Raj Act, 1994

the petitioner had not taken a licence for the factor. Hence arrears of licence fee could not be

demanded from Petitioner. Therefore, there was no need to look into the provision on limitation.

It was held that the Licence could not be granted retrospectively.


Licence cannot be retrospectively granted. Moreover, Panchayat cannot demand arrears by

granting licence retrospectively.




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374

XVIII. V. Govindan Kutty v. Chelakkara Grama Panchayath and Ors.

1. State- Kerala




5. Case No.- W.P.(C). No. 7597 of 2015 (Y)

6. Name of the Case – V. Govindan Kutty v. Chelakkara Grama Panchayath and Ors.


8. Appellant- V. Govindan Kutty

9. Respondent- Chelakkara Grama Panchayath and Ors.

10. Case Type- W.P


a. Whether Sec 233(4) of the Kerala Panchayat Raj Act, 1994 was violated by the Gram

Panchayat?

12. Grounds of Challenge- If Sec 233(4) of the Kerala Panchayat Raj Act, 1994 was

violated by the Gram Panchayat.




State Agencies


Panchayat Raj Act, 1994 - Section 233 (4), Kerala Panchayat Raj Act, 1994 - Section 233A,

Kerala Panchayat Raj Act, 1994 – Section 235(F), Kerala Panchayat Raj Act, 1994 - Section

235(H), Kerala Panchayat Raj Act, 1994 - Section 235(P), Kerala Panchayat Raj Act, 1994 -

Section 235(Q)

17. Gist of Case -

The petitioner, an “A” Class PWD licence contractor, was awarded a civil work of making

improvements to Pazhayannur-Lakkidi Road, worth about Rs. 5 crore, for carrying out the

civil work thus awarded to the Petitioner; he purchased a Tar Mixing Plant (Hot Mixing Plant)

for the purpose of mixing metal components with tar. Having his own quarry and crusher unit



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within the limits of the respondent Gram Panchayat, the petitioner desired to install the

machine therein. Accordingly, when the petitioner submitted application to the respondent

Gram Panchayat, the 2nd Respondent issued communication requiring the petitioner to produce

certain documents. The respondent Gram Panchayat, eventually, refused to grant Dangerous

and Offensive Licence (D&O Licence). The rejection was based on resolution of the

Panchayat; nevertheless 2nd

Respondent felt that the application could be positively

considered. The Sec. 233 of the Act deals with permission for construction of factories and

installation of machinery.


The court held that in terms of Sec. 233(4), the Gram Panchayat is required to obtain the

necessary reports from the District Medical Officer and the Divisional Fire Officer. The court

opined that the delay had occurred only on account of the erroneous approach adopted by the

Gram Panchayat. It was held that the petitioner’s application should be processed and the

necessary Dangerous and Offfensive Trade (D& O) license should be given to the petitioner

expeditiously. Any D & O license being granted to the petitioner by the Gram Panchayat

should be subject to the report to be submitted by the Divisional Fire Officer. The writ petition

was allowed.


In case of inordinate delay, the committee of the respondent Grama Panchayat cannot hold up

the proceedings in the name of obtaining a report from the Divisional Fire Officer.

20. Obiter Dicta-

If the machinery causes, in the opinion of the Grama Panchayat, nuisance by reason of a

particular kind of fuel being employed or by reason or the noise or vibration created, or effluent

discharged or by reason of noxious odour, smoke or dust omitted, the secretary can direct the

person in charge of the machinery for the abatement of such nuisance within a reasonable time.



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XIX. V.R. Sukumaran Nair & Ors. v. The Secretary, Vazhoor Grama Panchayat & Anr.

1. State- Kerala



4. Name of Bench- M. Ramachandran, J.

5. Case No.- O.P. No. 12262 of 2003-I

6. Name of the Case – V.R. Sukumaran Nair & Ors. v. The Secretary, Vazhoor Grama

Panchayat & Anr.


8. Appellant- V.R. Sukumaran Nair & Ors

9. Respondent- The Secretary, Vazhoor Grama Panchayat & Anr.

10. Case Type- O.P


a. Whether Panchayat had jurisdiction at all and is it mandatory that consultation with the

Regional Transport Authority was essential to decide public bus stops?

12. Grounds of Challenge -

If Panchayat had jurisdiction at all and is it mandatory that consultation with the Regional

Transport Authority was essential to decide public bus stops?




State Agencies

16. Provisions of Law Involved- Kerala Panchayat Raj Act, 1994 - Section 227


The Vazhoor Gram Panchayat (1st Respondent) unanimously decided certain arrangements in

the matter of stopping place of stage carriages and parking of vehicles, including light motor

vehicles. Altogether there were nine such decisions which were proposed to be implemented

forthwith. The first petitioner was invited for discussion in the matter and several other

organizations and societies were also invited. After about a month the petitioners made an

objection in the matter and thereafter filed the Original Petition.



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It was held that the Panchayat resolution did not unsettle parking places of stage carriages at all

since Rule 206 of the Kerala Motor Vehicle Rules does not appear to cast a mandatory

requirement. It was held that the Gram Panchayat is more aware about the requirements and

needs of the citizens and the Regional Transport Authority may not usually be equipped to

decide about a change in the location of the bus stop in a rural area. Therefore the court opined

that the Panchayat had not erred in prescribing route for the buses. Hence, the Original Petition

was dismissed.


According to Rule 206 of the Kerala Motor Vehicle Rules the Regional Transport Authority,

may, if no stopping place has been fixed for stage carriage in accordance with the provisions of

any statute, fix such places for such carriages after consultation with such other authority as it

may deem desirable. Though this can be done on a request made by the Panchayat, this does not

take away the right of the Panchayat to prescribe that in the matter of bus stops it has a say and

even without consultation with the Regional Transport Authority.




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STATE OF MADHYA PRADESH

I. Ajay Tripathi and Ors. v. State of Madhya Pradesh and Ors.

1. State- Madhya Pradesh

2. Court- In The High Court of Madhya Pradesh at Jabalpur


4. Name of Bench- R.S. Garg and S.C. Sharma, JJ.

5. Case No.- W.P. No. 7828 of 2006

6. Name of the Case – Ajay Tripathi and Ors. v. State of Madhya Pradesh and Ors.


8. Appellant- Ajay Tripathi and Ors

9. Respondent- State of Madhya Pradesh and Ors.



Whether Madhya Pradesh Panchayat Samvida Shala Shikshak (Employment and Conditions of

Contract) Rules, 2005 are ultra vires the Constitution of India and provisions of Madhya Pradesh

Panchayat Raj Awam Gram Swaraj Adhiniyam, 1993?


Whether Madhya Pradesh Panchayat Samvida Shala Shikshak (Employment and Conditions of

Contract) Rules, 2005 are ultra vires the Constitution of India and provisions of Madhya Pradesh

Panchayat Raj Awam Gram Swaraj Adhiniyam, 1993?


14. Area of Dispute Name - Others (Constitution)


State Agencies

16. Provisions of Law Involved – Madhya Pradesh Panchayat Raj Awam Gram Swaraj

Adhiniyam, 1993

17. Gist of Case-

The writ petition was filed under Article 226 of the Constitution of India. The petitioners

challenged the constitutional validity of Madhya Pradesh Panchayat Samvida Shala Shikshak



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(Employment and Conditions of Contract) Rules, 2005 (hereinafter referred to as ‘Rules of

2005’) as ultra vires the Constitution of India and being violative of the provisions of Madhya

Pradesh Panchayat Raj Awam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as

“Panchayats Act 1993”). They were also seeking a direction that the Court may by issuing

appropriate writ, direction or order strike down Sub-rules (1) to (13) of Rule 6 of 2005 Rules and

the Court may issue appropriate writ declaring Rules of 2005 to be valid piece of legislation and

issue appropriate writ, direction or order quashing the entire process of selection of Samvida

Shala Shikshak which commenced from 4-5-2006.


The court held that after going through the rules it was unable to find any illegality in the rules.

Sub-rule (1) of Rule 6 says that the employment shall be in accordance with the provisions of the

Rules. Sub-rule (2) says ‘Samvida Shala Shikshak Eligibility Examination’ shall be conducted

for employment of Samvida Shala Shikshak. The examination as per Sub-rule (3) would be

conducted by an agency prescribed by the Government, the vacancy and the selection to be made

shall be advertised. Sub-rule (4) provides the educational qualifications, Sub-rule (5) provides

the minimum percentage of marks to qualify in the eligibility examination. According to Sub-

rule (6) the provisions of Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Janjatiyon

Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994, shall apply to the said

employment, according to Sub-rule (7) particular reservation would be made. Sub-rule (8)

provides for submission and receipt of the candidature. Sub-rule (9) refers to criterion of

selection while Sub-rules (10) and (11) refer to preparation of provisional select list and

publication of provisional and final select list. Sub-rule (12) provides for period of contract

employment while Sub-rule (13) directs and mandates that the employment shall be from the

select list only. All these provisions by no stretch of imagination could be held to be ultra vires

the Constitution or ultra vires Section 47 or other provisions of the Panchayats Act, 1993. By

making Rules of 2005 the Government in fact plugged the holes from which the illegality could

seep in. Petition was accordingly dismissed.


It is true that an Education Committee would be constituted for education including adult

education etc. but that does not mean that such Education Committee shall be entitled to make

every appointment. When the State Government is entitled to exercise general powers of



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superintendence as provided in Section 53 and Section 86 and other allied sections to have

control over the Panchayats then the State Government would be entitled to issue such

directions.




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II. Anjana Mulkalwar (Smt.) v. Bhanu Yadav and Ors.


2. Court- In The High Court of Madhya Pradesh


4. Name of Bench- M.V. Tamaskar, J.

5. Case No.- W.P. No. 778 of 1995

6. Name of the Case – Anjana Mulkalwar (Smt.) v. Bhanu Yadav and Ors.


8. Appellant- Anjana Mulkalwar (Smt.)

9. Respondent- Bhanu Yadav and Ors.



Whether the election petition is maintainable?


Whether the election petition is maintainable?


• Bhanu Yadav v. Smt. Anjana and Anr. Election Petition No. 16 of 1994;

• Immati Mollappa Basappa v. Desai Basavaraj Ayyappa: AIR 1958 SC 698;

• K. Kamaraja Nadar v. Kunju Thevar and Ors. : AIR 1958 SC 687;

• Jagan Nath v. Jaswant Singh and Ors.: AIR 1954 SC 210




Representation of People Act, 1951 - Section 81, Representation of People Act, 1951 - Section

82; Madhya Pradesh Panchayat (Election Petitions, Corrupt Practices and Disqualification for

Membership) Rules, 1991 - Rules 2, Madhya Pradesh Panchayat (Election Petitions, Corrupt

Practices and Disqualification for Membership) Rules, 1991 - Rules 3, Madhya Pradesh

Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules,

1991 - Rules 4, Madhya Pradesh Panchayat (Election Petitions, Corrupt Practices and

Disqualification for Membership) Rules, 1991 - Rules 6, Madhya Pradesh Panchayat (Election



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382

Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1991 - Rules 7,

Madhya Pradesh Panchayat (Election Petitions, Corrupt Practices and Disqualification for

Membership) Rules, 1991 - Rules 8, Madhya Pradesh Panchayat (Election Petitions, Corrupt

Practices and Disqualification for Membership) Rules, 1991 - Rules 11, Madhya Pradesh

Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules,

1991 - Rules 13, Madhya Pradesh Panchayat (Election Petitions, Corrupt Practices and

Disqualification for Membership) Rules, 1991 - Rules 22; Madhya Pradesh Panchayat (Election

Petition, Corrupt Practices and Disqualification for Membership) Rules, 1962 - Rule 30; Madhya

Pradesh Panchayat Raj Adhiniyam, 1993 - Section 2, Madhya Pradesh Panchayat Raj

Adhiniyam, 1993 - Section 10, Madhya Pradesh Panchayat Raj Adhiniyam, 1993 - Section

10(3), Madhya Pradesh Panchayat Raj Adhiniyam, 1993 - Section 29, Madhya Pradesh

Panchayat Raj Adhiniyam, 1993 - Section 29(1), Madhya Pradesh Panchayat Raj Adhiniyam,

1993 - Section 33, Madhya Pradesh Panchayat Raj Adhiniyam, 1993 - Section 122; Constitution

of India - Article 329, Constitution of India - Article 342(O)(B)

17. Gist of Case

The writ petition was filed that challenged the order passed by the Commissioner, Bilaspur,

dated 13.3.1995 in Election Petition No. 16 of 1994 (Bhanu Yadav v. Smt. Anjana and Anr.)

setting aside the election to Constituency No. 34 - Takhatpur, District - Bilaspur, declaring her

election as member of the Jila Panchayat, Bilaspur as invalid. Two election petitions were filed.

One by Bhanu Yadav a/o Bhalau Yadav and another by Manharanlal s/o Santram (Election

Petition No. 26 of 1994). The data relevant for deciding this petition: The Petitioner was a

candidate for election from Constituency No. 34, Takhatpur, on 1.6.1994 which was reserved for

other backward classes. Having been elected the Petitioner contested for the post of President of

Jila Panchayat, Bilaspur, which was reserved for woman and was elected on 26.6.1994. Her

election as member was challenged from Constituency No. 34. Takhatpur, by Bhanu Yadav. The

election to the post of President was also challenged by Manharanlal. He also challenged her

election as Member from Takhatpur constituency.


The court held that for the interest of the constituency once the process has been set in motion by

the Petitioner he released certain forces which even he himself would not be able to recall and he

is bound to pursue the petition to its logical end. The election petition cannot be withdrawn as a



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matter of right. Since it has been found that the election petitions filed were not competent, the

finding given on merit whether the Petitioner belongs to other backward classes or not becomes

redundant. If any attempt has been made by the Petitioner to obtain a false certificate that she

does not belong to other backward classes, the authorities may take such steps as they deem

proper. The election of the Petitioner could not have been set aside or declared void on a petition

filed which were not competent. For the reasons stated above, the petition was allowed with

costs. The Respondents No. 1 and 2 and the intervener shall bear the costs of the Petitioner at the

rate of Rs. 1,000/- each


The election petition cannot be withdrawn as a matter of right. Since it has been found that the

election petitions filed were not competent, the finding given on merit whether the Petitioner

belongs to other backward classes or not becomes redundant.

20. Obiter Dicta-

It may be stated that an election contest is not an action at law or a suit in equity but is a purely

statutory proceeding unknown to the common law and the Court possess no common law power.



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III. APL International Ltd. v. State of Madhya Pradesh and Ors.




4. Name of Bench- R.S. Garg and S.C. Sharma, JJ.

5. Case No.-

6. Name of the Case – APL International Ltd. v. State of Madhya Pradesh and Ors.


8. Appellant- APL International Ltd.


10. Case Type-


The legality of Section 75 of Madhya Pradesh Panchayat Raj Awam Gram Swaraj Adhiniyam,

1993 was challenged?


The legality of Section 75 of Madhya Pradesh Panchayat Raj Awam Gram Swaraj Adhiniyam,

1993 was challenged?

13. Reference taken from the case – Nil


15. Area of Dispute Category

16. Provisions of Law Involved- Indian Stamp Act, 1899 - Section 9

17. Gist of Case-

The petitioner being aggrieved by the circular letter dated 31-5-1995 addressed by the

Respondent No. 2 (R2) to all the District Registrars, Collector of Stamps and Sub Registrars in

the State of Madhya Pradesh and also being aggrieved by the letter dated 24-3-2000 addressed

by R4 State Bank of Indore to the petitioner is before this Court with a submission that

provisions contained in Section 75 of Madhya Pradesh Panchayat Raj Awam Gram Swaraj

Adhiniyam, 1993 (Panchayat Raj Act for short) are ultra vires the Constitution, the R2 i.e.

Inspector General of Registration and Superintendent of Stamp had no authority to issue the said

circular letter to other authorities to recover 1% duty in addition to stamp duty nor the



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respondent/ Bank had any authority under the law to deduct a sum of Rs. 6,97,000/-- from

petitioners C.D. account towards cost of Panchayat duty on mortgage created in favour of the

bank without issuing any notice to the petitioner or without affording any opportunity of hearing

and without looking into the notification of the State Government issued on 29-12-1990 which

was fixing a cap of Rs.50,000/.


The court held that the settled principal of Law is that the State is not entitle to recover anything

beyond Rs. 50,000/- under Section 75 of Adhiniyam and R4 is not entitled to make an

application to concerned competent officer of State Government for refund of money. If

application is filed by R4 then State Government shall dispose of application within a period of

three months from the date of submission of application along with a copy of the order.

Petitioners were entitled to costs quantified at Rs. 5000/-.


If the law says that everybody knows law then a Bank which is governed by different laws and

has the assistance of battery of lawyers cannot be allowed to say that the law was not in their

notice or was not brought to their notice or there was no law.




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IV. Awadhesh Kumar Sharma v. State of Madhya Pradesh


2. Court- In The High Court of Madhya Pradesh (Gwalior Bench)


4. Name of Bench- Sujoy Paul, J.

5. Case No.- W.P. No. 6592 of 2012

6. Name of the Case – Awadhesh Kumar Sharma v. State of Madhya Pradesh


8. Appellant- Awadhesh Kumar Sharma

9. Respondent- State of Madhya Pradesh

10. Case Type- W.P


Whether order of transfer as well as transfer policy was valid or not?


Whether order of transfer as well as transfer policy was valid or not?


• Major E.G. Barsay vs. The State of Bombay 1961 AIR 1762, 1962 SCR (2) 195

• Dhananjaya Reddy etc. vs. State of Karnataka AIR 2001 SC. 1512;

• Biharilal Jaiswal vs. State of M.P. and others 2001 (4) MPHT 25;

• The Joint Action Committee of Airlines Pilots Associations of India and Ors. vs. The

Director General of Civil Aviation and Ors. (2011) 5 SCC 435;

• J and K Housing Board and Anr. vs. Kunwar Sanjay Krishan Kaul and Ors. (2011) 10

SCC 714;

• Brij Mohan Lal vs. Union of India (UOI) and Ors. (2012) 6 SCC 502;

• Col. A.S. Sangwan vs. Union of India (UOI) and Ors. AIR 1981 SC 1545, 1981 LablC

831, 1980 Supp (1) SCC 559;

• A.P. Public Service Commission vs. Baloji Badhavath and Ors. 2009 (5) SCC 1;

• Dattatreya Moreshwar Pangarkar vs. the State of Bombay and Ors. 1952 AIR 181, 1952

SCR 612

• Narmada Bachao Andolan vs. State of Madhya Pradesh and Anr. (2011) 7 SCC 639



740

387

• Commissioner of Income Tax, Gujarat-III, Ahmedabad vs. Ahmedabad Rana Caste

Association AIR 1982 SC 32, 1983 140 ITR 1 SC, (1982) 2 SCC 542;

• State of Madhya Pradesh and others vs. Dr. Yashwant Trimbak 1996 AIR 765,

1996 SCC (2) 305

• Godavari Shamrao Parulekar vs. State of Maharashtra and Ors. 1964 AIR 1128,

1964 SCR (6) 446;

• The State of Bihar vs. Rani Sonabati Kumari 1961 AIR 221, 1961 SCR (1) 728

• State of U.P. and others etc. vs. Pradhan Sangh Kshettra Samiti and others etc. AIR 1995

All 162



State Agencies


Constitution Of India - Article 154, Constitution Of India - Article 162, Constitution Of India -

Article 163, Constitution Of India - Article 166, Constitution Of India - Article 166(1),

Constitution Of India - Article 166(2), Constitution Of India - Article 166(3), Constitution Of

India - Article 309; Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 -

Section 52, Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Section

52(1)(xii), Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 69,

Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 70, Madhya

Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 95

17. Gist of Case-

The petitioner, a Panchayat Secretary working in Gram Panchayat Pipruakala, Tanshil Bhander,

District Datia was transferred by Chief Executive Officer (CEO), Jila Panchayat by order dated

15.7.2012. This order of transfer as well as the transfer policy dated 31.3.2012 was called in

question in this petition.


The court held that on carefully reading of Rule 6(7) of Madhya Pradesh Panchayat Service

Rules, 2011 (the Rules) it can be discerned that no doubt, Rule gives power to frame transfer

policy to Commissioner but this does not mean that other authorities if otherwise competent

were prohibited to issue any policy on subject. If Adhiniyam gives power to other authorities and



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to State Government as well to frame policy on subject, it could not be said that powers to frame

policy were restricted only to the Commissioner. Petition was accordingly dismissed.


Rules can be supplemented but no executive instructions can supplant the rules.




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V. Dhanwanti v. State of M.P. and others




4. Name of Bench- S.K. Gangele and G.D. Saxena, JJ.

5. Case No.- W.A. No. 432 of 2012

6. Name of the Case – Dhanwanti v. State of M.P. and others


8. Appellant- Dhanwanti

9. Respondent- State of M.P. and others

10. Case Type- W.A


Whether Court dismissing petition on ground that proviso to Section 40(1)(c) of the Adhiniyam

did not have any mandatory force and the Appellant could avail alternative remedy available to

her under the Adhiniyam was valid or not?


Whether Court dismissing petition on ground that proviso to Section 40(1)(c) of the Adhiniyam

did not had any mandatory force and Appellant could avail alternative remedy available to her

under the Adhiniyam was valid or not?


•••• Bhuvaneshwar Prasad @ Guddu Dixit vs. State of Madhya Pradesh and Ors. 2009 (1)

MPLJ 434;

•••• Chandra Kishore Jha vs. Mahavir Prasad & Ors. 1999 (2) Suppl. SCR 754 261;

•••• Topline Shoes Ltd. vs. Corporation Bank 2002 (3) SCR 1167;

•••• Balwant Singh and Ors. vs. Anand Kumar Sharma and Ors. 2003 (1) TMI 656;

•••• Gursahai Saigal vs. Commissioner of Income Tax, Punjab 1963 AIR 1062, 1963 SCR

Supl. (3) 893;

•••• Commissioner of Income Tax vs. Mahaliram Ramjidas (1940) 42 BOMLR 997;

•••• Nelson Motis vs. Union of India and another AIR 1992 SC 1981;



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390

•••• Gurudevdatta VKSSS Maryadit & Ors. vs. State of Maharashtra & Ors. (2001) 4 SCC

534;

•••• State of Jharkhand and Anr. vs. Govind Singh JT 2004 (10) SC 349;

•••• State of Uttar Pradesh vs. Dr. Vijay Anand Maharaj [1962] INSC 109;

•••• Thakur Amar Singhji vs. State of Rajasthan 1955 AIR 504, 1955 SCR (2) 303

•••• Suraj Mal Kailash Chand and Ors. vs. Union of India (UOI) and Anr. AIR 1982 SC 130,

1981 (3) SCALE 1597, (1981) 4 SCC 554, 1981 (13) UJ 725 SC

•••• Jitender Tyagi vs. Delhi Administration and another AIR 1990 SC 487;

•••• M/s. Oswal Agro Mills Ltd. etc. etc. vs. Collector of Central Excise and others etc. etc.

1993 AIR 2288, 1993 SCR (3) 378

•••• Union of India (UOI) and Ors. vs. Brigadier P.S. Gill (2012) 4 SCC 463

•••• Bharat Aluminium Company and Ors. etc. etc. vs. Kaiser Aluminium Technical Service,

Inc. and Ors. etc. (2012) 9 SCC;

•••• Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad,

Muzaffarnagar 1969 AIR 556, 1969 SCR (1) 518;

•••• Union of India (UOI) and Ors. vs. Mangal Textile Mills (I) P. Ltd. and Ors. 2010 02

JEE(E) 0944;

•••• Harbanslal Sahnia and Anr. vs. Indian Oil Corpn. Ltd. and Ors. AIR 2003 SC 2120, JT

2002 (10) SC 561, 2004 I OLR 81, (2003) 2 SCC 107

14. Area of Dispute Name - Removal

15. Area of Dispute Category- Suspension of Sarpanch and Other Members

16. Provisions of Law Involved- Constitution Of India - Article 226; Madhya Pradesh

Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 125, Madhya Pradesh Panchayat

Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 13(2)(a), Madhya Pradesh Panchayat Raj

Avam Gram Swaraj Adhiniyam, 1993 - Section 2(2), Madhya Pradesh Panchayat Raj Avam

Gram Swaraj Adhiniyam, 1993 - Section 40, Madhya Pradesh Panchayat Raj Avam Gram

Swaraj Adhiniyam, 1993 - Section 40(1)(c), Madhya Pradesh Panchayat Raj Avam Gram Swaraj

Adhiniyam, 1993 - Section 40(c)

17. Gist of Case-

The appellant filed this appeal against the order passed by the learned Single Judge in W.P. No.

4719/2012. The appellant was elected as Sarpanch of Gram Panchayat. A show cause notice dt.



744

391

6-2-2012 was issued by the Sub Divisional Authority Dabra, an authority prescribed under

section 40 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 for removal of office

bearers of Panchayat. The appellant challenged the aforesaid order in a writ petition on the

ground that in accordance with the proviso to section 40(1)(c) of the Adhiniyam of 1993, the

competent authority had no power and jurisdiction to pass the order of removal beyond the

period of 90 days from issuing the show cause notice because the order was passed beyond the

prescribed period, hence, it was null and void and contrary to the proviso to section 40(1)(c) of

the Adhiniyam of 1993.


The court held that the proviso to Section 40(c) of the Adhiniyam was procedural in nature and

after reading whole of Section 40 of the Adhiniyam including proviso of Section, it was not only

a procedural law but it was a substantive law because it gives power of removal to prescribed

authority of office bearers of Panchayat. When a particular power has been given in regard to

removal of an elected office bearer, it would be exercised in the same manner as prescribed

under the Statute and the proviso of section 40(1)(c) of the statute does not give power to the

prescribed authority to continue the inquiry beyond the period of 90 days because it mandates

that the final order shall be passed within 90 days and the period could be extended further 30

days with the approval and extension by the higher officer. The words which were used are that

“such extension of time shall not be more than 30 days.” In the present case, the prescribed

authority has not taken any extension from the higher officer. Petition was accordingly allowed.


According to the Hon’ble Supreme Court in Harbansal Sahnia vs. Indian Oil Corpn. Ltd. (2003)

2 SCC 107 - … ‘that the rule of exclusion of writ jurisdiction by availability of an alternative

remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of

availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at

least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental

rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or

proceedings are wholly without jurisdiction or the vires of an Act is challenged.




745

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VI. Dukhkhu Singh v. State of M.P. and Ors.


2. Court- In The High Court of Madhya Pradesh (Jabalpur Bench)


4. Name of Bench- K.K. Lahoti, J.

5. Case No.- Writ Petition No. 4731/2004

6. Name of the Case – Dukhkhu Singh v. State of M.P. and Ors.


8. Appellant- Dukhkhu Singh

9. Respondent- State of M.P. and Ors.

10. Case Type- W.P


Whether Writ petition challenging the election petition is maintainable?


Whether Writ petition challenging the election petition is maintainable?





Madhya Pradesh Panchayat Raj and Gram Swaraj Adhiniyam, 1993 - Section 9, Madhya

Pradesh Panchayat Raj and Gram Swaraj Adhiniyam, 1993 - Section 18, Madhya

Pradesh Panchayat Raj and Gram Swaraj Adhiniyam, 1993 - Section 19, Madhya

Pradesh Panchayat Raj and Gram Swaraj Adhiniyam, 1993 - Section 20

17. Gist of Case-

The petitioner contested the election of the post of Sarpanch Gram Panchayat, Harrabhat, Tehsil

Baihar, District Balaghat held in the year 1999-2000. In the said election one Rai Singh was

declared elected as Sarpanch. The petitioner challenged his election by filing an election

petition. The election petition of the petitioner attained finality and it was held that the petitioner

is entitled to hold the office of Sarpanch. The petitioner thereafter took the charge. The petitioner

contented that he was wrongly deprived of holding the office of Sarpanch and now is entitled to



746

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hold the office for a period of 5 years from the date of order passed by the Apex Court. It is also

contended that in the re-counting, he was successful but he was declined the benefit as returned

candidate because of the Court orders. He could not hold the office of Sarpanch for the complete

terms. Now the State has declared election of Panchayat, while petitioner is entitled to hold the

office minimum for a period of 5 years as petitioner is the only person who was duly elected and

Rai Singh was not duly elected Sarpanch. Because of the declaration of the election of

Panchayat, petitioner has to leave his office before the expiry of his term of minimum 5 years.


The court held that it is not in dispute that after the election of Sarpanch, the election was

published by the prescribed authority in accordance with the Act. Section 18 of the Act provides

that the newly elected Sarpanch shall be deemed to have assumed the charge of the office with

effect from the date of the first meeting as provided in Section 20 of the Act. Under Section 20

of the Act, the first meeting shall be held within 30 days from the date of publication of election

under Section 19. The aforesaid provision says that the elected Sarpanch shall be deemed to

assume the charge of the office with effect from the date of first meeting as provided under

Section 20 of the Act. The aforesaid deeming clause is specific in this regard and it shall be

presumed that the petitioner assumed the charge on the date when the first meeting was

convened, within 30 days from the date of publication of election. Merely because of the

aforesaid circumstances other person who at the relevant time declared as return candidate

assumed the charge will not be a ground to the petitioner to hold the office for a further period of

5 years from the date of the order passed by the Apex Court. The duration of Panchayat is five

years from the date of its first meeting unless it is dissolved prematurely. Petitioner is not

entitled to hold the charge even after completion of the period of Panchayat. After notification of

the new election, the elected Sarpanch shall assume the charge of the office w.e.f. the date of

first meeting. In these circumstances, the contention of the petitioner that he is entitled to hold

the office from the date of order passed by the Apex Court has no merit. Petitioner is entitled to

hold the charge till the constitution of new Panchayat or the elected Sarpanch assumes the

charge in accordance with law. Petition dismissed.




747

394

The duration of Panchayat is five years from the date of its first meeting unless it is dissolved

prematurely. Petitioner is not entitled to hold the charge even after completion of the period of

Panchayat




748

395

VII. Kailash Babu Rai v. State of M.P. and Ors




4. Name of Bench- Abhay M. Naik, J.


6. Name of the Case – Kailash Babu Rai v. State of M.P. and Ors.


8. Appellant- Kailash Babu Rai

9. Respondent- State of M.P and Ors.

10. Case Type- W.P


Whether the order of termination from the post of Panchayat Karmi was sustainable?


Whether the order of termination from the post of Panchayat Karmi was sustainable?



15. Area of Dispute Category- Removal of Darpanch and Other Members

16. Provisions of Law Involved- M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993

- Section 49, M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 - Section 69, M.P.

Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 - Section 71, M.P. Panchayat Raj Evam

Gram Swaraj Adhiniyam, 1993 - Section 85

17. Gist of Case-

Petitioner was removed from the post of Panchayat Karmi on the ground that he had misused his

post. Hence, writ petition was filed against the order of termination.


Petitioner was appointed as Panchayat Karmi and thereafter notified as Panchayat Secretary

falling within the ambit of member of Panchayat service or Panchayat servant as defined in

clause (f) supra. Removal from service of Petitioner falls in Sub-clause (6) of Clause (b) of Rule

5, which was a major penalty. Procedure for imposing major penalty was provided in Rule 7.



749

396

This procedure was not followed in the case and the charge-sheet required under Sub-rule (2) of

Rule 7 was not issued at all. Impugned order was in contravention of these rules were also not

otherwise sustainable in law. Writ petition was allowed.


Petitioner having been appointed as Panchayat Karmi and thereafter notified as Panchayat

Secretary fell within the ambit of member of Panchayat service or Panchayat servant as defined

in clause (f) supra. Removal from service of the Petitioner falls in Sub-clause (6) of Clause (b) of

Rule 5, which is a major penalty. Procedure for imposing major penalty is provided in Rule 7.

This procedure was not followed in the case of the Petitioner

20. Obiter Dicta-

Power to sanction Samajik Suraksha Pension (hereinafter referred to as “Pension” for brevity) is

vested for the purposes of rural area in Janpad Panchayat alone and Gram Panchayat had no

power to sanction such pension in the name of any person though he/she may be entitled to it

under the guidelines.



750

397

VIII. Manoj Kumar Yadav S/o Shri Jahar Singh Yadav v. State of M.P. through the

Secretary, Panchayat Department, Collector, Deputy Director, Panchayat and Social





4. Name of Bench- A.K. Patnaik, C.J. and S.S. Kemkar, J.


6. Name of the Case – Manoj Kumar Yadav S/o Shri Jahar Singh Yadav v. State of M.P.

through the Secretary, Panchayat Department, Collector, Deputy Director, Panchayat and Social



8. Appellant- Manoj Kumar Yadav S/o Shri Jahar Singh Yadav

9. Respondent- State of M.P through the Secretary, Panchayat Department, Collector,

Deputy Director, Panchayat and Social Service and Gram Panchayat, Sendri Janpad Panchayat

through its Sarpanch

10. Case Type - W.P


Whether resolution adopted by Panchayat was in violation of Panchayat Karmis Yojna?


Whether resolution adopted by Panchayat was in violation of Panchayat Karmis Yojna?



15. Area of Dispute Category- Suspension of Term of Sarpanch and Other Members

16. Provisions of Law Involved- The Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993-

Section 70

17. Gist of Case-

The appellant filed Writ Petition claiming that the members of Sendri Gram Panchayat adopted a

resolution under the supervision of Tahsildar, Niwari appointing the appellant as Panchayat

Karmi of the Gram Panchayat and accordingly the appellant joined as Panchayat Karmi and



751

398

started working. But, all of a sudden the Collector Tikamgarh issued an advertisement for

recruitment of Panchayat Karmis on various Gram Panchayats including Gram Panchayat,

Sendri. Being aggrieved, the appellant filed W.P. for quashing the advertisement. The learned

Single Judge without issuing notice to the respondents dismissed the writ petition.


The Court held, it was not for the Court to suo motu decide whether resolution adopted by

Panchayat was in violation of Panchayat Karmis Yojna. If there was any violation it could be

decided only after replies were filed by respondents and not at the stage of motion or admission

when only case of appellant in writ petition before Court was filed. Hence, order of Single Judge

was set aside.


It was not for the Court to suo motu decide whether the resolution adopted by the Panchayat was

in violation of Clause 3.4 of the Panchayat Karmis Yojna as whether there were violations or not

could be decided only after replies were filed by the respondents and not at the stage of motion

or admission.




752

399

IX. Smt. Nati Bai v. The Returning Officer, Panchayat Elections Sheopur & Ors.




4. Name of Bench- Rajendra Menon, J.

5. Case No.- W.P. No. 148 of 2008

6. Name of the Case – Smt. Nati Bai v. The Returning Officer, Panchayat Elections

Sheopur & Ors.


8. Appellant- Smt. Nati Bai

9. Respondent- The Returning Officer, Panchayat Elections Sheopur & Ors.

10. Case Type - W.P


a. Whether election Petition filed by Respondent no. 2 was maintainable?

b. Whether, order passed by Tribunal for recount of votes was illegal?


Whether election Petition filed by Respondent no. 2 was maintainable? Whether, order passed

by Tribunal for recount of votes was illegal


• Uday Singh vs. Himmat Singh and Ors. 1999 (1) JLJ 200;

• Smt. Suman Patel vs. Smt. Bhanwati & ors. 1999 (1) MPLJ 88;

• Kailash Singh vs. Narayan Singh and Ors. AIR 1999 MP 183;

• Satyanarain Dudhani vs. Uday Kumar Singh and Ors. AIR 1993 SC 367, 1993 (41) BLJR

278, 1992 (3) SCALE 221, 1993 Supp (2) SCC 82;

• Tara vs. Dabla alias Lalita and Ors. 2002 (3) MPLJ 591;

• P.K.K. Shamsudeen vs. K.A.M. Mappillai Mohindeen and Ors. 1989 AIR 640, 1988

SCR Supl. (3) 950;

• Smt. Ram Rati vs. Saroj Devi and others AIR 1997 SC 3072


15. Area of Dispute Category- Counting/Re-counting



753

400


Constitution of India - Article 226, Constitution of India - Article 227; Madhya Pradesh

Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 122

17. Gist of Case-

Elections to the Gram Panchayats were held and in the said election counting of votes took

place. Petitioner and R2 were candidates contesting the election for the post of Sarpanch of

Gram Panchayat Utanbada, Tehsil and Dist. Sheopur (M.P.). In the counting held, the petitioner

secured 533 votes while the R2 secured 520 votes. 67 votes were found invalid. Accordingly,

results were declared and the petitioner was declared elected as Sarpanch of the Gram

Panchayat. Being aggrieved by the election of the petitioner, R1 filed an election petition under

section 122 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. R2 challenged the

election of petitioner as Sarpanch in the said election petition.


The Court held that it was clear from Rule 3(1) of Rules that election Petition was required to be

presented before Specified Officer either by election Petitioner himself or by person who is

authorized in writing by election petitioner. Rule 8 of Rules further provide that if provisions of

Rule 3 of Rules were not complied with, Election Petition should be dismissed by Specified

Officer .However original records received from Specified Officer indicate that election Petition

was presented before him by counsel of R2 on the basis of Vakalatnama given by Petitioner.

There was no specific authorization in writing authorizing counsel to file election Petition under

Section 122 of Adhiniyam before Specified Officer. Thus it was clear that election Petition was

not presented by Petitioner herself before specified officer as required under statutory Rules.

Therefore election Petition was liable to be dismissed on this ground alone. Further, specified

officer had registered election Petition and proceeded to decide the same without taking note of

the illegality in the matter of presentation of election Petition. Hence it was held that election

Petition was not maintainable and specified officer had committed grave error of law in

accepting the election Petition which was not presented before him in accordance with the

requirement of law. Petition was thus allowed.

For the second issue, the court held that the combined reading of Rule 80 and Rule 77 of the

Rules indicated that recounting of votes had to be done in presence of candidate or candidates or

election agents in the same manner as prescribed for counting of votes i.e. recounting is also



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401

required to be done in accordance with provisions of Rule 77 of the Rules. It was clear that the

specified officer had directed for recounting of votes only on the ground that recounting could be

done even when the candidate or her agents were not present. Apart from irregularity in matter,

it was clear that R2 had sought for recounting on the basis of certain vague allegations to the

effect that certain votes cast in her favor were counted in favor of the winning candidate and the

counting had not been done properly. Recounting of votes in election was not permissible until

and unless a strong case for recounting was made out. Petition was thus allowed.


Until and unless very strong and prima facie case for recounting is not made out, no order for

recounting can be made.

20. Obiter Dicta-

Secrecy of the ballot papers cannot be permitted to be taken lightly.



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402

X. Pawan Rana v. State of M.P. and Ors.



3. Bench- Division Bench (3)

4. Name of Bench- A.K. Patnaik, C.J., S.M. Samvatsar and A.K. Shrivastava, JJ.

5. Case No.- W.P. No. 148 of 2008

6. Name of the Case – Pawan Rana Vs. State of M.P. and Ors.


8. Appellant- Pawan Rana


10. Case Type - W.P


a. Whether, State Government or Prescribed Authority had powers to change authority for

appointment of Panchayat Karmi?


Th power of State Government or Prescribed Authority to change authority for appointment of

Panchayat Karmi


• Leelawati and Anr. vs. State of Madhya Pradesh and Ors. ILR (2008) M.P.;

• Tinsukhia Electric Supply Co. Ltd. vs. State of Assam and others 1990 AIR 123, 1989

SCR (2) 544


15. Area of Dispute Category- Postponement/Re-election

16. Provisions of Law Involved- Madhya Pradesh Panchayat Raj Adhiniyam, 1993 -

Section 53

17. Gist of Case-

Collector directed Chief Executive Officer to make appointment of Panchayat Karmi and Chief

Executive Officer appointed Respondent No. 4 as Panchayat Karmi.



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403


The court held that General provision of Section 53 (2) would apply where instead of Panchayats

performing functions entrusted to them, State Government itself undertook to execute such

functions of Panchayats through its own agencies. This provision did not apply where Panchayat

failed to perform a particular duty conferred on it under Adhiniyam, 1993 despite a direction by

State Government or the Prescribed Authority to perform such duty. Therefore, under Section 86

(2) of Adhiniyam, 1993, State Government or Prescribed Authority had powers to change

authority for appointment of Panchayat Karmi of a Gram Panchayat. Appeal disposed of.


State government shall appoint executive officer if provided so.




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404

XI. Smt. Phool Bai v. State of Madhya Pradesh and Ors.




4. Name of Bench- Sanjay Yadav, J.

5. Case No.- W.P. No. 148 of 2008

6. Name of the Case – Smt. Phool Bai v. State of Madhya Pradesh and Ors.


8. Appellant- Smt. Phool Bai


10. Case Type - W.P


Whether denial of reasonable opportunity of hearing results in miscarriage of justice?


Denial of reasonable opportunity of hearing results leads to miscarriage of justice.


• Kailashchandra Jain vs. State of M.P. and Ors. 2002 (5) MPHT 524

• Rajendra Singh Raghuvanshi vs. State of M.P. and Ors. 2004 (3) MPHT 373

• A.K. Kraipak and Ors. vs. Union of India (UOI) and Ors. 1969 (2)SCC 262. 124;

• State of U.P. vs. Harendra Arora and Anr. AIR 2001 SC 2315

14. Area of Dispute- Removal

15. Area of Dispute Category- Inappropriate conduct of Sarpanch or other Members


Section 40 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993; Code of Civil

Procedure, 1908 (CPC) - Section 99A, Code of Civil Procedure, 1908 (CPC) - Section 115;

Code of Criminal Procedure, 1973 (CrPC) - Section 465; Constitution of India - Article 226,


17. Gist of Case-

Petitioner was elected as Sarpanch of Gram Panchayat. Thereafter certain complaints were

lodged against petitioner in respect of construction .Enquiry was conducted wherein charge of



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405

misuse of fund in respect of construction found substantiated. Proceedings were initiated during

which petitioner filed application for summoning officials who have conducted enquiry for

cross- examination. Application was allowed but said officers did not turn up for cross

examination. Therefore Cross-examine closed. Subsequently petitioner was disqualified for a

period of six years to hold any post under Panchayat. Appeal was preferred by petitioner which

was dismissed. Then Revision petition was filed which was also dismissed. Hence the present

petition was filed.


The court held that Authority heavily relied upon findings recorded in enquiry report and not

afforded an opportunity to cross-examine officers who prepared enquiry report which resulted

miscarriage of justice and denial of reasonable opportunity of hearing. Order of removal based

on defective enquiry cannot be given stamp of approval. Hence, matter remitted to Prescribed

Authority for further enquiry. In result, petition allowed.


No person shall be removed unless he has been given an opportunity to show cause why he

should not be removed from his office




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406

XII. Pushpendra Singh v. Padmakar and Ors.




4. Name of Bench- D.P.S. Chauhan, J.

5. Case No.- W.P. No. 1097 of 1996

6. Name of the Case – Pushpendra Singh Vs. Padmakar and Ors.


8. Appellant- Pushpendra Singh

9. Respondent- Padmakar and Ors.

10. Case Type - W.P

11. Main Law points- Whether the order of recounting of ballot papers sustainable?

12. Grounds of Challenge- The sustainability of the order of recounting of ballot papers.


• P.K.K. Shamsudeen v. K.A.M.M. Mohindeen : AIR 1989 SC 640;

• N. Gopal Reddy v. Bonala Krishnamurty : 1987 JT 406 : AIR 1987 SC 831


15. Area of Dispute Category- Re-election/ Postponement

16. Provisions of Law Involved- Madhya Pradesh Panchayat Raj Adhiniyam, 1993 -

Section 122; The Madhya Pradesh Panchayat Nirvachan Yachika Pratibhuti Nikshep

(Vidhimanyakaran) Adhiniyam, 1996 ;Code of Civil Procedure (CPC) ;Madhya Pradesh

Panchayat Nirvachan Niyam, 1995 - Rule 82; The Madhya Pradesh Panchayats (Election

Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1991 - Rule 7

17. Gist of Case-

The Election petition was filed under Section 122 of the M.P. Panchayat Raj Adhiniyam, 1993.

Election Tribunal passed the order of recounting the ballot papers which was challenged under

writ petition.


The court held that it was accepted position that no evidence was led before the Election

Tribunal by the election Petitioner so as to establish and substantiate in any acceptable measure



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407

by means of evidence a prima facie case having in existence high degree probability for recount

of the ballot papers. Election Tribunal had not recorded reasons regarding recounting of three

ballot papers in favour of the election Petitioner as to what was the nature and characteristic of

such ballot papers as the Tribunal had not seen such ballot papers and has passed the order only

on the basis of report of the Returning Officer who made the recounting of ballot papers. The

Tribunal was also supposed to look to them himself and to record reasoning by dealing each

ballot paper, as to why they were wrongly counted and why they have been counted by the

Election Tribunal in favour of a particular candidate. Thus, writ petition allowed.


The Tribunal is supposed to record reasoning by dealing each ballot paper, as to why ballot

papers are wrongly counted and why they have been counted by the Election Tribunal in favour

of a particular candidate.

20. Obiter Dicta-

Election petition is not common law remedy. It is a remedy provided by the statute.



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408

XIII. Raja Ram Ahirwar v. State of Madhya Pradesh and Ors.


2. Court- In The High Court of Madhya Pradesh at Jabalpur


4. Name of Bench- A.K. Patnaik, C.J. and Prakash Shrivastava, J.

5. Case No.- W.P. No. 1097 of 1996

6. Name of the Case – Raja Ram Ahirwar Vs. State of Madhya Pradesh and Ors.


8. Appellant- Raja Ram Ahirwar


10. Case Type - W.P


Whether the order of recounting of ballot papers is sustainable?


Sustainability of the order of recounting of ballot papers.


• K. Venkatachalam vs. A Swamickan and Another 1999 (2) SCR 857


15. Area of Dispute Category- Counting/Re-counting


Constitution of India - Article 173, Constitution of India - Article 226; Representation of The

People Act 1950 - Section 20; representation of the people Act, 1951 - Section 5

17. Gist of Case-

The present appeal filed was under Section 2 (i) of the M.P. Uchcha Nyayalaya (Khand

Nyayapeeth Ko Appeal) Adhiniyam, 2005, against the order passed by the learned Single Judge

in Writ Petition under Article 226 of the Constitution. The Respondent No. 3 (R3) was enrolled

in the voter list of Gram Panchayat, Lakhahar, published in the year 1999. He contested the

election of Zila Panchayat, Sagar and was elected from Village Lakhahar in the year 2000. The

R3 was also registered as a voter in the electoral roll of Shivaji Ward No. 50, Bina Municipality

and he contested the election for the Bina Municipality and was declared elected as President of



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409

Bina Municipality also.The appellant who is also a registered voter of Shivaji Ward of Bina

Municipality filed a writ petition under Article 226 of the Constitution praying for a writ of quo

warranto against the R3 for his removal from the office of the President of the Bina

Municipality. The case of the appellant in the writ petition was that the R3 could not have been

registered as a voter in the electoral roll of Bina Municipality inasmuch as he was also registered

as a voter in Gram Panchayat, Lakhahar and, therefore, her was not qualified to be a candidate

for election for the post of President of Bina Municipality under Section 34 of the M.P.

Municipalities Act.


The court held that reading of Sections 30 and 31 of Act shows that it does not provide that a

person who is registered as a voter of village for purpose of Panchayat elections is not qualified

or disqualified from being registered as a voter in electoral roll of Municipality. Thus, there is no

provision in Act prohibiting a person to be registered as a voter in Municipal Electoral Roll if he

is registered as a voter in village for purposes of Gram Panchayat Election. Hence appeal was

dismissed.


Rule 9-A does not provide for automatic disqualification as a voter in the electoral roll of the

Municipality on the ground that he was also registered in the voter list of the village for the

Gram Panchayat Elections.




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410

XIV. Ram Singh Yadav and Ors. v. State of M.P. and Ors.




4. Name of Bench- Sheel Nagu, J.

5. Case No.- Writ Petition Nos. 2328, 2353, 2354 and 2460/2015

6. Name of the Case – Ram Singh Yadav and Ors. v. State of M.P. and Ors.


8. Appellant- Raja Ram Ahirwar


10. Case Type - W.P


Whether the power of judicial review under Article 226 of the Constitution of India can be

exercised to assail the order appointing the private respondent as Assistant Secretary of Gram

Panchayat and giving him charge of the post of Secretary, Gram Panchayat which till passing of

impugned order was being held as additional charge by the petitioner who continues to hold the

substantive charge of Secretary of another Gram Panchayat?


The legality of exercise of power of judicial review under Article 226 of the Constitution of

India can be exercised to assail the order appointing the private respondent as Assistant

Secretary of Gram Panchayat and giving him charge of the post of Secretary, Gram Panchayat

which till passing of impugned order was being held as additional charge by the petitioner who

continues to hold the substantive charge of Secretary of another Gram Panchayat.


• Parshotam Lal Dhingra vs. Union of India (UOI) 1958 AIR 36, 1958 SCR 828;

• The State of Bombay vs. F.A. Abraham 1962 AIR 794, 1962 SCR Supl. (2) 92;

• The State of Rajasthan vs. Ram Saran 1964 AIR 1361, 1964 SCR (2) 982;

• Gurdev Singh vs. State of Punjab 1991 AIR 2219, 1991 SCR (3) 663;

• Union of India (UOI) and Anr. vs. Gajendra Singh, etc., etc. [1972] 3 S. C. R. 660;

• State of Orissa and Anr. vs. Dr. Pyari Mohan Misra AIR 1995 SC 974;



764

411

• B. Srinivasa Reddy vs. Karnataka Urban Water Supply and Drainage Board Employees'

Association and Ors. AIR 2006 SC 3106;

• State Bank of India and Ors. vs. Palak Modi and Anr. (2013) 3 SCC 607


15. Area of Dispute Category- Postponement/Re-election

16. Provisions of Law Involved- Constitution of India - Article 226

17. Gist of Case-

The petitioner held the post of Secretary, Gram Panchayat Navni, Janpad Panchayat Chanderi

District Ashoknagar. Presumably on account of the post of Secretary of adjoining Gram

Panchayat of Singhpurchalda District Ashoknagar being vacant, the petitioner was given the

additional charge of this vacant post. The additional charge of vacant post of Secretary of Gram

Panchayat to the substantive Secretaries of adjoining Gram Panchayat was amended by invoking

the power under Section 69 (1) of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 and

appointing persons (private respondents herein) who were Gram Rozgar Sahayak as Assistant

Secretaries and handing over the charge of the Secretary of the vacant post of Secretary which

were earlier manned by substantively appointed Secretary of the adjoining Gram Panchayat of

the like of the petitioner.


It was held that entire petitions of the petitioners do not contend that there is any adverse affect

to the service conditions attached to the substantive post of Secretary Gram Panchayat held by

them. It is trite principle of service jurisprudence that a service matter in shape of Writ Petition

seeking issuance of writ of certiorari as sought in these petitions cannot be successfully

contested in a court of law unless the impugned order or the grievances, directly or indirectly

cause adverse affect to any of the service conditions of the petitioner. Holding of additional

charge is not one of the concomitant of service conditions unless the recruitment rules or any

other relevant statute provides otherwise, which is not the case herein. Thus it is evident that

none of the grounds raised by the petitioner are found to be tenable. Consequently, all the Writ

Petitions i.e. Writ Petition No. 2328/2015, Writ Petition No. 2353/2015, Writ Petition No.

2354/2015 and Writ Petition No. 2460/2015 being sans merit are dismissed in limine at

admission stage.



765

412


The grant and taking away of additional charge does not bestow or deprive the person concerned

of any substantive right so long as the service conditions attached to the post held substantively

by the said person are not adversely effected.




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413

XV. Ramesh Chandra Vanshkar v. State of M.P. and Ors




4. Name of Bench- S.C. Sharma, J.

5. Case No.-

6. Name of the Case - Ramesh Chandra Vanshkar v. State of M.P. and Ors.


8. Appellant- Ramesh Chandra Vanshkar


10. Case Type -


Whether the power of judicial review under Article 226 of the Constitution of India can be

exercised to assail the order appointing the private respondent as Assistant Secretary of Gram

Panchayat and giving him charge of the post of Secretary, Gram Panchayat which till passing of

impugned order was being held as additional charge by the petitioner who continues to hold the

substantive charge of Secretary of another Gram Panchayat?

12. Ground of Challenge-

Legality of exercise of power of judicial review under Article 226 of the Constitution of India to

assail the order appointing the private respondent as Assistant Secretary of Gram Panchayat and

giving him charge of the post of Secretary, Gram Panchayat which till passing of impugned

order was being held as additional charge by the petitioner who continues to hold the substantive

charge of Secretary of another Gram Panchayat.


• Jugraj Singh Markam vs. Dhannulal Maravi and Ors. 2004 (1) JLJ 340



16. Provisions of Law Involved - Constitution of India - Article 226

17. Gist of Case-



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414

Petitioner was declared as elected Sarpanch Gram Panchayat. Notice was given for calling a

meeting of no confidence against Petitioner under the provisions of M.P. panchayat Raj

Adhiniyam, 1993 read with Rule 3 of the M.P. Panchayat. No confidence motion was held

illegal and was set aside by Collector. The same order was reversed by Additional

Commissioner. Petition was filed against the order.


The court held that proper notice was not given and Petitioner was not able to participate in the

meeting. Order passed by Commissioner was set aside. Petition allowed.


In the absence of proper notice, the order passed by the Commissioner deserves to be set aside.




768

415

XVI. Satya Narayan s/o Onkarlalji Patjdar v. Additional Commissioner, Ujjain and

Others


2. Court- In The High Court of Madhya Pradesh at Indore Bench


4. Name of Bench- Viney Mittal, J.

5. Case No.- W.P. No. 8260 of 2006

6. Name of the Case – Satya Narayan s/o Onkarlalji Patjdar v. Additional Commissioner,

Ujjain and Others


8. Appellant- Satya Narayan s/o Onkarlalji Patjdar

9. Respondent- Additional Commissioner, Ujjain and Others



a. Whether Petitioner was right in challenging election of Respondent no. 2 who was

declared as elected to post, of Member of Zila Panchayat Ratlam?


The legality of challenging election of Respondent no. 2 who was declared as elected to post, of

Member of Zila Panchayat Ratlam.



15. Area of Dispute Category-Re-election/Postponement

16. Provisions of Law Involved- Constitution Of India - Article 226; Madhya Pradesh

Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 122, Madhya Pradesh Panchayat

Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 91

17. Gist of Case

Petitioner had challenged the election of Respondent No. 2 (R2) who was declared as elected to

the post, of Member of the Zila Panchayat Ratlam. Elections to the post of Member of the Zila

Panchayat Ratlam were held in January 2005.R2 was declared as a winning candidate. Vide an

election petition filed on February 28, 2005 under the provisions of Section 122 of the Madhya



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416

Pradesh Panchayat Raj Evem Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as Act), the

Petitioner challenged the aforesaid election. The election petition filed by the Petitioner was

dismissed holding the same to be barred by limitation.


The court held that Respondent No. 2 was declared as elected Member of Zila Panchayat. An

election petition was maintainable within a period of 30 days. The election Petitioner filed the

election petition on February 28, 2005. As per the provisions of the General Clauses Act, the day

on which the elections were held in January 29, had to be excluded for computing the period of

limitation. Thus, the election petition had been filed within the period of limitation. Even

otherwise it was fairly informed by the learned Counsel for the parties that February 27, 2005

was a Sunday. Thus, the election petition had been filed on next opening day i.e. February 28,

2005. Consequently, the present petition was allowed.

19. Ratio Decidendi: The order passed by the Specified Authority and any decision taken in

the election petition, can only be challenged by an aggrieved party by approaching this Court

under Article 226 of the Constitution of India




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417

XVII. Suresh Baba v. Virendra Tyagi and Others




4. Name of Bench- A.K. Shrivastava and Brij Kishore Dubey, JJ.

5. Case No.- Writ Appeal No. 506/2010

6. Name of the Case - Suresh Baba v. Virendra Tyagi and Others


8. Appellant- Suresh Baba

9. Respondent- Virendra Tyagi and Others

10. Case Type - WA


Whether Writ Court was justified in disqualifying Respondent No. 4 (R4)?


Justifiability of the grounds disqualifying Respondent No. 4 (R4).


• N. Kannadasan vs. Ajoy Khose and Ors. [(2009) 7 SCC 1;

• Ram Sukh vs. Dinesh Aggarwal (2009) 10 SCC 541;

• Bhairulal Chunilal vs. State of Bombay AIR 1954 Bom 116, (1953) 55 BOMLR 882,

ILR 1954 Bom 104



16. Provisions of Law Involved- Indian Penal Code (45 Of 1860) (IPC) - Section 302;

Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 36, Madhya

Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 36 (1), Madhya Pradesh

Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Section 36 (1) (a) (i); Madhya Pradesh

Uchcha Nyayalaya (khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 - Section 2

17. Gist of Case-

The Writ Court allowed Petition of Petitioner and disqualified R4 for post of Sarpanch of Gram

Panchayat. Hence this Appeal was filed.



771

418


The court held, on perusal of Section 36 (1) (a) (i) and (ii) of Adhiniyam' person should not be

eligible to be office bearer of Panchayat who had either before or after commencement of said

Adhiniyam' been convicted of any other offence and sentenced to imprisonment for not less than

six months unless period of five years had elapsed. In the present case since Appellant was

released only on 15th August 2009 and five years had not yet been elapsed therefore Writ Court

had rightly held that Appellant was disqualified for holding office of Sarpanch. Further

'Adhiniyam' had been enacted for purpose of acquiring welfare of citizens and particularly of

residents as well as voters of locality for whom said Adhiniyam had been enacted - However if

Appellant was permitted to continue to hold post of Sarpanch it would amount to throttling real

aim and object to legislate Section 36 (1) (a) (i) and (ii) of Adhiniyam. In order to give and

construe Section 36 (1) as well as sub-section (2) of Adhiniyam it had to interpret both

provisions in order to make Section 36 as whole workable. Therefore Writ Court was justified

in disqualifying R4 for post of Sarpanch. Appeal was dismissed.


If statutory provision is open to more than one interpretation then Court has to choose that

interpretation which represents true intention of Legislature.

20. Obiter Dicta-

A statute is an edict of the Legislature and the conventional way of interpreting or construing a

statute is to seek the 'intention' of its maker.



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419

STATE OF MAHARASHTRA

I. Nandkishor, Prashant, Avinash and Ajay Shravanji Gondane v. The State of

Maharashtra through the Secretary and Others

1. State -Maharashtra

2. Court - High Court Of Bombay (Nagpur Bench)

3. Bench– Two Judge Bench ( Division Bench)

4. Name of Bench -B.P. Dharmadhikari and Z.A. Haq, JJ.

5. Case no. -Writ Petition No. 3973 of 2013

6. Name of the Case -Nandkishor, Prashant, Avinash and Ajay ShravanjiGondane v. The

State of Maharashtra through the Secretary and Others


8. Appellant -Nandkishor, Prashant, Avinash and Ajay ShravanjiGondane

9. Respondent -The State of Maharashtra through the Secretary and Others

10. Case Type -Writ Petition

11. Main Law Points involved – Whether, under the Govt. Resolution dated 06.04.2013 the

State Government was empowered to change the implementing agency and hand over the works

to PWD.

12. Grounds of Challenge- The power of the State Government to change the implementing

agency and hand over the works to PWD


• Charan vs. State of Maharashtra 2012 (4) Bom. C.R. 40;

• Sau. Banotai vs. The Divisional Commissioner, Amravati and Ors.2013 (4) Mh.L.J. 211


15. Area of Dispute Category- Dispute among Panchayats or between Panchayats and the

State Departments/ Agencies

16. Provisions of Law Involved- Section 63, Section 82, Section 82 (g), Section 83, Section

84, Section 86, Section 88, Section 89 and Section 91 of Bombay Provincial Municipal

Corporations Act, 1949; Article 166 and Article 226 of the Constitution of India



773

420

17. Gist of Case-

State Government released grants of Rs. 25 crores as per Government Resolution dated

06.04.2013 to enable Municipal Corporation to provide elementary facilities and developments

in municipal area. The MLA of Amravati and Badnera areas, on 23.05.2013 sent a

communication to the Chief Minister and stated that out of grants of Rs. 25 crores, 12.5 crores

needed to be spent in his constituency. He also requested that implementing Agency should be

changed and work should be handed over to Public Works Department (PWD), Amravati. The

Chief Minister agreed and issued a communication for the same. However the Petitioners

objected to the same. They argued that the amount of Rs. 25 crores received by Municipal

Corporation was towards reimbursement on account of deficit in LBT and the Corporation in

turn had to contribute equal amount. Since the grants received constituted Municipal funds, the

Corporation was competent to spend it for development activities as per its need. It was

statutorily empowered to undertake such activities, change of implementing agency and handing

over the work to State PWD was unwarranted and without jurisdiction. The Petitioners termed it

as high handed and arbitrary use of powers by the Chief Minister.

18. Operating Portion of the Judgment -

The Hon’ble High Court observed that under the Resolution of 06.04.2013 the Government was

not empowered to change the implementing agency. The entrusting of said works to State PWD

was, therefore, clearly unsustainable. It was further observed that the power with the State

Government to order execution of any work through the special grants did not enable it to

exercise it arbitrarily. Basically, the need for any type of works in a particular area would first be

realized by the Municipal Corporation and such works would first figure in its list. The State

Government, in a deserving situation, might have substituted one or few works therein, or might

have at the threshold, directed particular works to be undertaken through said grants, if it found

execution of such works expedient. When the Act primarily obliged the Municipal Corporation

to provide for all the municipal needs, such power given to the State Government to supersede or

substitute the decision of the Municipal Corporation could be taken recourse to only in

exigencies. Hence the Writ Petition was allowed and order was passed to process further the

issue of appropriation of said amount of grants in accordance with law.



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The power with the State Government to order execution of any work through the special grants

does not enable it to exercise it arbitrarily. When the Act primarily obliges the Municipal

Corporation to provide for all the municipal needs, such power given to the State Government to

supersede or substitute the decision of the Municipal Corporation can be taken recourse to only

in exigencies & after satisfaction that the work directed by the Government deserves precedence.




775

422

II. Sau. Pramila v. Bandu



3. Bench– Single Judge Bench

4. Name of Bench -A.B. Chaudhari, J.


6. Name of the cases -Sau. Pramila v. Bandu


8. Appellant -Sau. Pramila

9. Respondent -Bandu


11. Main Law Points involved – Whether the non-payment of water tax by the Hindu Joint

Family of the Sarpanch disqualified her from holding the said post?

12. Grounds of Challenge–

The non-payment of water tax by the Hindu Joint Family of the Sarpanch disqualifies her from

holding the said post.


• Dr. K. Krishna Murthy and Ors. vs. Union of India (UOI) and Anr. 2010 AIR SCW

3368;

• Chandkhan and Ors. vs. W.N. Gound and Ors. AIR1973) Bombay 1 (V 60 C 1)];

• Smt. Anguri Devi vs.State of Haryana and Ors. AIR1998 Punjab & Haryana 31;

• Charan vs. State of Maharashtra2012(4) Bom. C.R. 40;

• S. Sundaram Pillai and Ors. vs. V.R. Pattabiraman and Ors.AIR 1985 SC 582

14. Area of Dispute – Election



Article 14, Article 15, Article 15(3), Article 16, Article 21, Article 40 and Article 243-T (4) of

the Constitution of India; Section 175 of Haryana Panchayati Raj Act, 1994



776

423


For Gram Panchayat, Ner, the post of Sarpanch was reserved for Scheduled Castes [Woman] and

the petitioner was elected on the said post on 10 August, 2010. The Respondent objected to this

on the ground that the Petitioner resided in a Hindu Undivided Family and that water tax

remained unpaid by her family for a long time. The Additional Collector held that the Petitioner

was disqualified for membership of the Panchayat under Section 14(1)(h) of the Maharashtra

Village Panchayats Act, 1958 and this order was also upheld by the Additional Commissioner.

Hence the present Writ Petition was filed.


The Court noted the records of the Additional Collector which stated that the water tax had been

pending since the past 15 years and was not paid despite of repeated demand notices. However it

also considered evidences from the Voter Lists and BPL card, which showed that the Petitioner

in fact resided with her husband, separate from the joint family. Nevertheless her husband did

not relinquish his share in the joint family property. Explanation 2 to 14(1)(h) of the Maharashtra

Village Panchayats Act, 1958 included under disqualification all such persons who were joined

“by custom joint in estate or residence” to a Hindu Undivided Family which had failed to pay

any tax. In this regard the Court observed that the aforesaid Explanation was a glaring example

of the legislation that violated Constitutional Rights given to women. Hence the Writ Petition

was allowed and the order of the Additional Commissioner disqualifying the Petitioner was set

aside.


The concept of Hindu Law or Hindu Undivided Family cannot be allowed to take a place above

the constitutional provisions and the constitutional amendment regarding Panchayati Raj.

20. Obiter Dicta-

An Explanation added to a statutory provision is not a substantive provision in any sense of the

term and it is merely meant to explain or clarify certain ambiguities which may have crept in the

statutory provision. It ordinarily does not enlarge the scope of the original section which it

explains. The proper function of an Explanation is to make plain or elucidate what is enacted in

the substantive provision and not to add or subtract from it.



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424

III. Sau. Banotai v. The Divisional Commissioner, Amravati and Ors




4. Name of Bench -B.P. Dharmadhikari and A.B. Chaudhari, JJ.


6. Name of the cases -Sau. Banotai v. The Divisional Commissioner, Amravati and Ors.


8. Appellant -Sau. Banotai

9. Respondent -The Divisional Commissioner, Amravati and Ors.

10. Case Type–Writ Petition

11. Main Law Points involved – Whether the funds allotted for a project to the Panchayat

Samitee can be transferred to the Executive Engineer on the sole request of the MLA?

12. Grounds of Challenge– The power of a MLA to transfer the fund allocated for a project

to the Panchayat Samitee to the Executive Engineer.

13. Reference taken from the Case–

• Charan vs. State of Maharashtra2012 (4) Bom. C.R.40

14. Area of Dispute Name –Decentralization


16. Provisions of Law Involved- Article 226 of the Constitution of India.


The Petitioner alleged that for beautification and development of garden near Rest House at

Adan Project, Karanja, a provision of Rs. 50,00,000/- was made for 2009-10, and administrative

sanction for various sub-works in total was granted to the extent of Rs. 34.97 lakhs under the

Account Head 3452276-Basic amenities for development of Tourist Places. The same was

required to be spent by the Panchayat Samitee, Karanja. The entire allotted amount was

transferred to the Executive Engineer on instructions of the MLA of the area. Aggrieved by this

the Petitioner filed an unsuccessful application before the Divisional Commissioner, Amravati

Division for a stay against the transfer..



778

425


At the very outset the Court observed that the allotted amount in this case admittedly belonged to

Zilla Parishad/Panchayat Samitee, and it did not belong to any of the Departments of the State

Government. The Chief Executive Officer had absolutely no business to order transfer of

Panchayats funds to State Department by acting as per the desire of the MLA. There seemed to

be no reason why the Divisional Commissioner did not take cognizance of the serious violations

of the constitutional provisions. The Court also commented that the lower authorities were all

“indulged in a similar flattery to please the” MLA. Hence the Writ Petition was allowed and a

re-transfer of funds to the Panchayat Samitee was ordered.


The bureaucracy should act in the spirit of democracy and take decisions in consonance with the

Panchayati Raj amendment and ensure its proper implementation.




779

426

IV. Shobha Dipak Behde v. Umakant Reva Fegade and Others


2. Court - High Court Of Bombay (Aurangabad Bench)


4. Name of Bench -S.P. Deshmukh, J.


6. Name of the cases -Shobha Dipak Behde v. Umakant Reva Fegade and Others


8. Appellant -Shobha Dipak Behde

9. Respondent -Umakant Reva Fegade and Others


11. Main Law Points involved – Whether formation of an aghadi by the elected

independent members of the Municipal Council, on the very day of announcement of the

election results, disqualified them from the membership of the Council.

12. Grounds of Challenge– Legality formation of an aghadi by the elected independent

members of the Municipal Council, on the very day of announcement of the election results,


• Director of Income Tax vs. Bombay Bullion Association Dharam No Kanto Trust2002

(2) Mh.L.J.797;

• Vasant NivruttiGite and Anr. vs. The Municipal Corporation of City ofNashik and Ors.

2007 (4) Mh.L.J. 871;

• Ajay Maken vs. Adesh Kumar Gupta and Anr.(2013) 3 SCC 489;

• Nagar Palika Nigam vs. KrishiUpajMandiSamiti and Ors.2008 (12) SCC 364;

• Afjal Imam vs. State of Bihar and Ors. 2011 (5) SCC 729;

• PandurangDagadu Parte vs. RamchandraBaburaoHirve and Others 1997

(2) Mh.L.J. 759

• JeevanChandrabhanIdnani and Anr. vs. Divisional Commissioner, Konkan Bhavan and

Ors.(2012) 2 SCC 794;

• Sri Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors.(2007) 4 SCC 270;



780

427

• Dr. Mahachandra Prasad Singh vs. Hon. Chairman, Bihar LegislativeCouncil and Ors.

(2004) 8 SCC 747;

• KedarShashikant Deshpande etc. etc. vs. BhorMunicipal Council and Ors. etc. etc. 2011

(2) SCC 654;

• NarsingraoGurunathPatil and Ors.vs. ArunGujarathi, Speaker and Ors. 2003 (1) BCR

363;

• Jagjit Singh vs. State of Haryanaand Ors. (2006) 11 SCC 1;

• Ravi S. Naik and Sanjay Bandekar vs. Union of India and others1994 Supp (2) SCC 641;

• Sunil Supadu Mahajan vs. ManojDayaramChoudhari and The JalgaonCity Municipal

Corporation 2011 (4) Mh.L.J. 630

14. Area of Dispute Name –Election



Order VI Rule VI of Code of Civil Procedure, 1908 (CPC); Section 2(a), Section 3(2), Section 5

and Section 9 of Maharashtra Local Authority Members' Disqualification Act, 1986; Section 62,

Section 63, Section 63 (2B) and 65 (4) (c) of Maharashtra Municipal Councils, Nagar

Panchayats And Industrial Townships Act,1965.


Respondents No. 1 to 10 were elected as members to said Municipal Council, as independent

candidates in status. Thereafter on the same day of announcement of the election results, ten out

of eleven independent councillors convened a meeting for formation of "Aghadi" referred to as

"Yawal Shahar Vikas Aghadi". The Petitioner prayed for a declaration that respondents No. 1 to

10 stood disqualified under section 3(2) of Maharashtra Local Authorities Members'

Disqualification Act, 1986 ("MLAMD Act"), which prohibited joining any political party or

Aghadi subsequent to elections by such councillors.


The Hon’ble High Court observed that under MLAMD Act, aghadi or front implied a group of

persons who had formed themselves into a party for the purpose of setting up candidates for

election to a local authority. It was further noted that under Section 63(2B) of the Act a post-poll

aghadi formed within one month from the date of notification of election results on registration

was accorded status of pre-poll aghadi. This was aimed at proper representation for the



781

428

councillors in the committees constituted under the Municipal Councils Act in proportion to the

strength of political parties or groups in the councils. It was thus held that that impugned agahdi

was deemed to be a pre-poll aghadi and that Section 3(2) of the MLAMD Act would not operate

and would have no application.

It was further observed that even if it was assumed that the intention underlying Section 63(2B)

was inconsistent or incompatible with the intention underlying the MLAMD Act, it was well

settled that the provisions of statute apparently inconsistent with any provision were to be

construed so as to give effect to all the provisions, in order to avoid repugnancy.

Thus the petition was dismissed and the Respondents weld held to incur no disqualification.


If the legislature makes a special enactment in order to deal with a particular case and later

makes a general act which includes the subject of the special act and is in conflict with the

special act and if the legislature has in its mind the special act, the special act for the purpose as

amended under the general act has to give way.

20. Obiter Dicta:

The MLAMD Act is aimed at restricting, regulating, controlling and prohibiting defections and

has its genesis in the growing tendency of people's representatives to defect after having been

elected as a candidate set up by a party or aghadi or front.

The MLAMD Act and Rules do not require that registration of aghadi shall be with reference to

purpose of decision of strength of registered political party, aghadi or front.



782

429

V. Suresh Balkrishna Pogale v. State of Maharashtra and Ors.




4. Name of Bench -R.J. Kochar and S.T. Kharche, JJ.

5. Case no. - W.P. No. 3720 of 2001

6. Name of the cases -Suresh BalkrishnaPogale v. State of Maharashtra and Ors.


8. Appellant -Suresh Balkrishna Pogale

9. Respondent -State of Maharashtra and Ors.



Whether a male person can be allowed to fill in the nomination form for the purpose of

election to the post of Sarpanch by de-reservation of the post which is reserved for the

women of the general category by virtue of Section 30(4)(c) of the Bombay Village

Panchayats Act, 1938 (for short the Act) read with Rule 2A of The Bombay Village

Panchayats (Sarpanch and Up-sarpanch) Election Rules 1964.


Legality of allowing a male person can be allowed to fill in the nomination form for the

purpose of election to the post of Sarpanch by de-reservation of the post which is

reserved for the women of the general category by virtue of Section 30(4)(c) of the

Bombay Village Panchayats Act, 1938 (for short the Act) read with Rule 2A of The

Bombay Village Panchayats (Sarpanch and Up-sarpanch) Election Rules 1964.

13. Reference taken from the case - Nil



16. Provisions of Law Involved- Section 30(4) Bombay Village Panchayats Act, 1959;

Bombay Village Panchayats (Sarpanchand Up - Sarpanch) Election Rules, Bombay Village

Panchayats (Sarpanch and Up –Sarpanch1964



783

430


The post of Sarpanch of Gram Panchayat, Pawana was exclusively reserved for women of

general category. The petitioner being the Up-sarpanch, was looking after the duties of the

Sarpanch. No woman member belonging to the general category was available to contest the

election of Sarpanch. Hence the Petitioner filed the nomination papers for election to the post of

Sarpanch. However his nomination was rejected. The Petitioner argued that a Sarpanch would be

elected by and from amongst the members of the Panchayat and, as such, the post of Sarpanch

could not be kept vacant. It was also contented that though the post of Sarpanch was reserved for

woman from general category, in absence of any candidate from female members of general

category, the male members would be entitled to contest for the said post of Sarpanch.


The Court noted that the office of Sarpanch was vacant and the Up-Sarpanch (i.e., the Petitioner)

was officiating as a Sarpanch of the said Gram Panchayat. On this basis it was observed that it

could not be said that the post of Sarpanch reserved for a woman of general category could not

be kept vacant till a woman candidate from the general category to be elected for the post of

Sarpanch was available. The office of the Sarpanch was reserved for women belonging to the

general category and though such a person was not available for the time being, it could not be

said that any other male candidate belonging to the general category or Scheduled Castes or

Scheduled Tribes or Backward Class of citizens was entitled for such allotment of the same post.

Further that a de-reservation of the post of Sarpanch could only be done by the legislature. Thus

the decision to keep the post of Sarpanch vacant for the tenure for which it was reserved for

women from general category was held to be perfectly legal and valid. The petition was

accordingly dismissed.


Fielding a male candidate in place of a women candidate in absence of unavailability of a

woman candidate amounts to de-reservation of the post of Sarpanch and consequently frustrates

the very intention of the legislature.




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431

VI. Gajanan Baburao Sankpal, v. Avinash Bhauso Kamble


2. Court - High Court Of Bombay


4. Name of Bench - S.C. Dharmadhikari, J.

5. Case no. - Writ Petition No. 4595 of 2010

6. Name of the cases –Gajanan Baburao Sankpal, v. Avinash Bhauso Kamble,

7. Date of Judgement–17.10.2012

8. Appellant- Gajanan Baburao Sankpal

9. Respondent –AvinashBhausoKamble, Age : Adult, Occ: Agriculture, R/o. Shirol, Tal.:

Shirol, District : Kolhapur, Gramsevak, Gram Panchayat, Shirol, Tal: Shirol, District :

Kolhapur, Additional Collector, Kolhapur, District : Kolhapur and Divisional

Commissioner, Pune Division, Pune, District : Pune

10. Case Type - Writ Petition

11. Main Law Points involved–

Whether, Gram Sabha was validly convened?


Validity of the method of convening the Gram Sabha


• Corporation of the City of Nagpur, Civil Lines, Nagpur and another vs. Ramchandra and

others AIR 1984 SC 626;

• The ShamraoVithal Co-operative Bank Ltd. vs. KasargodPandhurangaMallyaAIR 1972

SC 1248;

• State of Mysore vs. Allum Karibasappa and Ors. AIR 1974 SC 1863;

• State of U.P. and others etc. vs. Pradhan SanghKshettra Samiti and others etc. AIR 1995

SC 1512

14. Area of Dispute Name –Others

15. Area of Dispute Category- Dispute among Panchayats and between panchayats and

State Department/ Agencies



785

432


Article 226,Article 227, Article 243, 243 (b), Article 243(b), Article 243(d), Article 243(g),

Article 243-C, Article 243-D, Article 243-E,Article 243-F, Article 243-G, Article 40, Article

51A of the Constitution Of India.

17. Gist of Case–

The Commissioner had set aside an order passed by Additional Collector wherein he allowed

Revision Application of Petitioner and declared gram sabha as cancelled by holding that gram

sabha could not be said to be validly convened particularly in terms of Government Resolution

and it was impossible that seven subjects were read out, and voted within short span of eight

minutes . Hence, by this Writ Petition under Articles 226 and 227 of the Constitution of India,

the Petitioner challenged the order passed by the Commissioner, Pune Division, Pune dated

06.05.2010 in an appeal.


The court said that no general rule can be laid down, but interference and intervention in the

exercise of peoples power should be not routine or as a matter of course, but in rare and

deserving cases. The satisfaction on all these and such matters must be recorded before the gram

sabha is interfered and its acts and decisions are set aside. Thus, the interference and intervention

should be minimum and exceptional. The Authorities have to assign reasons while arriving at a

satisfaction that the gram sabha as a whole or qua a particular act should be set aside. If once the

above conclusion is arrived at, then, ultimate act of the gram sabha in this case need not be

interfered with. If the above tests are applied, the decision in the instant case of the gram sabha is

not of such nature which requires interference or intervention by the State. Gram sabha had not

done something by which village interests were surrendered or sacrificed and it had also not

done something by which village administration itself was in jeopardy.

Further it had not called upon Panchayat to do anything by which one could conclude that object

and purpose of Act itself was defeated and frustrated. If merely Committee was replaced and that

decision was taken expeditiously inasmuch as meeting concluded in eight minutes, by itself and

without anything more, was no ground to interfere. If as alleged by Petitioner about 1000



786

433

villagers marched to Office of Block Development Officer complaining about gram sabha, but in

absence of any material of above nature, this itself would not enable Collector to set aside gram

sabha. Thus it could be said that gram sabha was validly conveyed.

Therefore Commissioner was in no error while setting aside order of Collector and the Petition

was accordingly dismissed.


Convention of any committee shall not be invalid unless it is found that committee has done

something by which interests of citizens are surrendered or sacrificed.

20. Obiter Dicta-

If a Gram Sabha in some matters is subjected to supervision of thePanchayat and the Panchayat

in turn is bound by authority of the State in terms of Chapter-XI,t hen, the Standing Committee,

Panchayat Samiti, the Chief Executive Officer of ZillaParishad ,the State are conferred with

varied powers to deal with a situation of default or deliberate act of omission and commission by

the Panchayat. To then hold that the Panchayat is bound by orders, directions and decisions of

the State, but a Gram Sabha is not, would run counter to the object and purpose of inserting

Chapter-XI



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434

VII. Vikramsing S/o JalamsingWalvi and Uttam S/o NimbhaDeshmukh v. The State of

Maharashtra through Secretary, Rural Development Department and Ors


2. Court - High Court Of Bombay at Aurangabad


4. Name of Bench -N.V. Dabholkar and N.D. Deshpande, JJ.


6. Name of the cases -Vikramsing S/o JalamsingWalvi and Uttam S/o NimbhaDeshmukhv.

The State of Maharashtra through Secretary, Rural Development Department and Ors.


8. Appellant -Vikramsing

9. Respondent -The State of Maharashtra through Secretary, Rural Development

Department and Ors.


11. Main Law Points involved–

a. Whether section 4(g) of the Panchayats (Extension to the Scheduled Areas) Act, 1996

constitutional?

12. Grounds of Challenge– Constitutionality of section 4(g) of the Panchayats (Extension to

the Scheduled Areas) Act, 1996.


• Boddula Krishnaiah and Anr. v. State Election Commissioner, Andhra Pradesh 1996 (3)

SCC 416;

• N.P. Ponnuswami v. The Returning Officer, Namakkal AIR 1952 SC 64; C.

Subrahmanyam v. K. Ramanjaneyullu and Ors. 1998 (8) SCC 703;

• Election Commission of India through Secretary v. Ashok Kumar and Ors. 2000 (8) SCC

216; Mohinder Singh Gill's case





788

435


Section 3,Section 4 of Section Panchayats (Extension to the Scheduled Areas) Act, 1996;

Constitution of India (Seventy Third) (Amendment) Act, 1992 ; Section 2(3), Section 2 (26A),

Section 4, Section 5, Section 12, Section 12(2), Section 42, Section 42 (4), Section 56, Section

58,Section 58(1B), Section 67 and Section 67(5); of Maharashtra ZillaParishads and Panchayat

Samitis Act, Maharashttra Scheduled Areas Order, 1985 ; Article 40, Article 226, Article 243,

Article 243B, Article 243D, Article 243D(1), Article 243D(4), Article 243K, Article 243K(1),

Article 243M, Article 243M(4),Article 243O, Article 244, Article 244(1), 254(1), Article 329,

Article 368 of the Constitution of India; Rules 3, Rules 4, Rules 4 (2), Rules 7, Rules 8, Rules 8

(2), Rules 14 (2) Maharashtra ZillaParishads and Panchayat Samitis (Manner and rotation of

Reservation of Seats) Rules, Rules 8, Rules 8 (2) Maharashtra ZillaParishads and Panchayat

Samitis (Manner and rotation of Reservation of Seats) Rules, 1996 - Rules 8(2); Maharashtra

ZillaParishad andPanchayat Samiti (Extension to the Scheduled Areas and Amendment)

Ordinance, 1997.

17. Gist of Case–

Petitioners filed Writ Petition for issuance of directions to Respondent No. 2-State Election

Commission to give effect to and strictly comply with provisions of Panchayats (Extension to

the Scheduled Areas) Act, 1996 which provides for reservation for Scheduled Tribes in

Scheduled Area.The Petitioners contented that Union of India has enacted Panchayats

(Extension to the Scheduled Areas) Act, 1996 and thus extended the provisions of Part IX of the

Constitution relating to Panchayats to the Scheduled Areas, subject to such exceptions or

modifications as provided in Section 4 of the Panchayats (Extension to the Scheduled Areas)

Act, 1996.


The court said that the implementation of Section 4(g) of PESA would require reservation of not

less than one-half of total number of seats in the Panchayat and also of all the offices of

Chairpersons of the Panchayats for Scheduled Tribe. If the election goes ahead without ensuring

such reservation, entire election proceedings will be illegal, viewed in the light of provisions of

PESA, which is a special legislation enacted by the Parliament, extending provisions of Part IX

of the Constitution with modifications, to the Scheduled Area. If election proceedings are



789

436

allowed and the seats which ought to be reserved for Scheduled Tribes are not reserved, the

situation cannot be rectified except by fresh election.

The court further said that the way the second proviso to Section 12(2)(b) and Section

58(1B)(b), as also 42(4)(a) and 67(5)(a) of Maharashtra Zilla Parishads and Panchayat Samitis

(Amendment)Act, 1997, seem to treat part of the area of a Panchayat declared as Scheduled

Area, at par with area not so declared, the Central legislation also seems to be invading in the

area not declared as Scheduled Area while extending applicability of part IX of the Constitution

to Scheduled Area, in its modified form by Section 4(g) of PESA. The State legislature lacks

legislative competence, so far as extension of IX part to Scheduled area is concerned and,

therefore, the provisions of State legislation, which conflict with PESA, would be inapplicable.

The court also said that on comparison Clause (g) of Section 4 of PESA, which introduced

exceptions/modifications to the application of Part IX of the Constitution to the Scheduled Area,

was silent on many aspects in Article 243D of the constitution. Two provisos to main Clause (g)

of Section 4 of PESA clearly provide modifications to Article 243D and does not find place in

Article 243D.The First proviso to Section 4(g) of the PESA may appear to be in conflict with

Article 243D, because in a given case the reservation for Scheduled Tribe may be 50 per cent,

although population of the Scheduled Tribe may not be fifty per cent. However, since Article

243M(4) begins with non-obstante Clause and sub Clause (b) of said Clause (4) empowers the

Parliament to make a law subject to exceptions and modifications without such law being

deemed amendment of the Constitution, it may not be possible to express that the modifications

as contained in the two provisos are unconstitutional. Liberty to modify Part IX as applicable to

the Scheduled Area with exceptions and modifications, is granted by Article 243M(4)(b) of the

constitution itself. Hence Section 4(g) of PESA is not unconstitutional. The court said that the

State Election Commission cannot deny responsibility of implementation of PESA in the field

and it is not possible to treat Scheduled Area and other part from the same Panchayat, as separate

zones, controlled by PESA and ZPPS Act, for the purpose of elections to Panchayats.

The Writ petition was accordingly allowed.


Where entire area of Panchayat is declared as Scheduled Area, only Panchayats (Extension to

the Scheduled Areas) Act, 1996 (PESA) would operate and provisions of State legislation, if in

conflict with PESA, would be inapplicable.



790

437

20. Obiter Dicta-

Article 243D(4)(b) provides that the Parliament has legislative competence to provide

application of part IX with exceptions and modifications as may be specified in the law

providing application of part IX to the Scheduled Areas.



791

438

NORTH EASTERN STATES

I. I. T. Manzaching v. The State Of Manipur and Ors.

1. State: Manipur

2. Court: Manipur High Court

3. Bench: Two Judges Bench

4. Name of Bench: Laxmi Kanta Mohapatra, C.J. And Kh. Nobin Singh, J.

5. Case Name: T. Manzaching V. The State Of Manipur And Ors.

6. Case No.: Writ Petition (C) No. 190 Of 2014

7. Date Of Judgment: 18.05.2015

8. Name Of Appellant/S: T. Manzaching

9. Name Of Respondent/S: The State Of Manipur And Ors.


11. Main Law Points Involved: Whether The Termination of Petitioner’s Services Was

Valid.

12. Grounds of Challenge: The petitioner was allowed to continue as substitute in the

department from 1986 without break and therefore under the provisions of central civil services

temporary service rules, 1965, she could not be terminated from service without following the

procedure prescribed in the said rules.

13. Reference Taken From Other Case/S: Nil

14. Area Of Dispute Name: Personnel System

15. Area Of Dispute Category: Appointment Related.

16. Provisions Of Law Involved: Order of the Director Rural Development and Panchayati

Raj Annexure A/18dated 6/.1.2014

17. Gist of the Case: The petitioner was appointed as a substitute ldc(dev) in place of a

person who had resigned from the post. During her service she also contributed to gpf. However

her name did not appear in the list of government employees under the computerisation of

personal information system (cpis). She was served a showcause notice as to why her service

should not be terminated due to her illegal appointment. Despite her timely reply to the notice

she was served the termination notice. Hence she filed the writ petition.



792

439

18. Operating Portion Of The Judgment:

At the very outset the hon’ble high court made it clear that the central civil services temporary

service rules, 1965 were applicable only to a person who held a civil post and whose salary was

paid from the defence service estimate under the govt. of india as well as to persons who were

employed temporarily in work charged establishment and who had opted for the pensionary

benefits. Since the petitioner did not fall into any of the aforesaid categories, the said rules were

not applicable in her case.

Next the court analysed the government order by which the petitioner was appointed. the order

stated that, “the prevalent system of district cadres for each district in respect of all class-iii & iv

posts in the districts and district level recruitment to these posts inclusive of ldcs and

stenographers by the district level d.p.cs concerned with respective deputy commissioners as

head of cadre (shall) cease with immediate effect and there should be no district level

recruitment to these posts.” on this ground it was concluded that the deputy commissioner had

no authority to appoint the petitioner as a substitute ldc which was undisputably in the district

cadre. even if the fact of her being a substitute was taken into consideration the nature of

appointment being a substitute ldc, she had no right to claim continuance in the post. the writ



The central civil services temporary service rules, 1965 were applicable only to a person who

held a civil post.

20. Obiter Dicta:

The deputy commissioner had no authority to appoint the petitioner as a substitute ldc which was

undisputably in the district cadre.



793

440

II. Smt. Devimaya Thapa and Ors. V. State Of Manipur And Ors.

1. State: Manipur


3. Bench: Single Bench

4. Name of Bench: T. Nandakumar Singh, J.

5. Case Name: Smt. Devimaya Thapa and Ors. v. State Of Manipur and Ors.

6. Case No.: W.P. (C) No. 642 Of 2009


8. Name of Appellant/S: Smt. Devimaya Thapa and Ors

9. Name of Respondent/S: State Of Manipur and Ors.


11. Main Law Points Involved: Whether the mandate of Article 243(e) could be diluted by

amending the Manipur Panchayat Raj Act, 1994 and extending the term of the Administrative

Committee.

12. Grounds Of Challenge: The legality of dilution of mandate under Article 243(e) by

amending Manipur Panchayat Raj Act, 1994

13. Reference Taken From Other Case/S: Nil.


15. Area of Dispute Category: Postponement/ Re-Election.

16. Provisions Of Law Involved: Section 22, Manipur Panchayat Raj Act, 1994

17. Gist Of The Case: Petitioners were voters of the Panchayat Raj Area, namely,

Santolabari Gram Panchayat. Notifications for election of Gram Sabha and Gram Panchayat

were issued in 2007, but rhe elections could not be held as planned. Only the Gram Pradhan

could be duly elected. Other candidates (of Santolabari and other villages) withdrew their

nominations owing to life threats by insurgents. As a result the Deputy Commissioner in

exercise of his power under section 22(2) of the Manipur Panchayati Raj Act, 1994 constituted

an administrative committee of the 30 Panchayats. The term of such committee was 6 months,

which expired on 15th March 2008. Since then till the date of judgment no elections had been

held for the Gram Panchayat. Meanwhile a Bill to amend section 22 of the Manipur Panchayat



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441

Raj Act, 1994 was pending in the assembly by which the term of the administrative committee

was proposed to be extended beyond 6 months.

18. Operating Portion Of The Judgment:

The Hon’ble High Court noted that the mandate of Article 243e of the Constitution of India was

that an election to constitute a panchayat had to be completed before the expiry of its duration

specified therein and duration of the panchayat would be five years from the date appointed for

its first meeting and no longer. Under Section 20(1) of the Manipur Panchayat Raj Act, 1994,

duration of every Gram Panchayat would be five years from the date appointed for its first

meeting and no longer. The Court held that the state could not amend section 22 of the Manipur

Panchayat Raj Act, 1994 so as not to hold the election in derogation of the mandate under

Article 243e of the Constitution of India. The court thus directed that state to comply with the

mandate of Article 243e of the Constitution and hold elections within 4 months from the date of

judgment.


The Authority Concerned is duty bound to comply with the mandate of the Constitution

provided under Article 243e of the Constitution of India, wherein the election to constitute a

Panchayat shall be completed within the expiry of its duration.




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442

III. Khangembam Imoba Singh And Ors. V. State Of Manipur And Ors.

1. State: Manipur


3. Bench: Single Bench

4. Name of Bench: A.M. Sapre, C.J.

5. Case Name: Khangembam Imoba Singh And Ors. V. State Of Manipur And Ors.

6. Case No.: Writ Petition (C) Nos. 321 Of 2006 And 691 Of 2007


8. Name of Appellant/S: Khangembam Imoba Singh And Ors.

9. Name of Respondent/S: State Of Manipur And Ors.


11. Main Law Points Involved: Whether the petitioners should reinstated in their service by

quashing their termination orders.

12. Grounds Of Challenge: The Petitioners services could not be terminated without any

misconduct or any other justified reason.

13. Reference Taken From Other Case/S: Nil

14. Area Of Dispute Name: Personnel System

15. Area Of Dispute Category: Appointment Related

16. Provisions Of Law Involved: Constitution Of India – Art. 311, 14.


The petitioners were appointed on the post of assistant research officer in the state institute of

panchayat raj and rural development manipur in the year 2002 purely on contract basis. Their

services were discontinued from 2005 on the ground of expiry of tenure. They challenged this

termination order in this case.


The court observed that their service was purely contractual in nature. They were not appointed

by any selection process as such against some sanctioned cadre post. Hence article 311 of the

constitution did not apply and their service was governed solely by the contract. Moreover

relevant material facts were not pleaded and evidence was not adduced to enable the court



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443

analyse the aspect of arbitrariness of state action under Article 14. On these grounds the

termination notice of the petitioners was not quashed and the case was dismissed.


In a case of contractual appointee, the provisions of Article 311 of the Constitution may not

apply inter-se parties to the contract and their appointment would be governed strictly by terms

of the service contract/appointment letter.

20. Obiter Dicta:

The plea of arbitrariness based on article 14 or/and other relevant articles of the constitution akin

thereto are still open to attack against the state when impugned in the writ petition at the instance

of any contractual employee. There should be good factual foundation for raising such objection.



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STATE OF ORISSA

I. Smt. Haramani Singh v. State Election Commissioner, Orissa and Another

1. State - Odisha

2. Court - High Court of Orissa

3. Bench – Single

4. Name of bench – S.K Mishra

5. Case no- W.P (C) No. 1594 of 2012

6. Name of the case- Smt. Haramani Singh v. State Election

Commissioner, Orissa and another

7. Date of judgement- February 3, 2012

8. Appellant - Smt. Haramani Singh

9. Respondent - State Election Commissioner, Orissa and another

10. Case type – Writ Application


a. Whether, the notification issued by the state Election Commission is violative of any of

the fundamental rights enshrined in part-III of the Constitution?

b. Whether the said notification is in consonance with the provisions of the relevant

Act and Rules guiding the Panchayati Raj elections?

12. Grounds of challenge- Legality and Constitutionality of the notification issued by the

State Election Commission


• N.P Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem

Dist., AIR (39) 1952 SC 64;

• Jamuna Prasad Mukhariya v. Lachhi Ram, AIR 1954 SC 686;

• Babu Lal Singal v. State of Haryana, AIR 1995;

• Mohinder Singh Gill v.The Chief Election Commissioner, New Delhi, (1978) I SCC 405

14. Area of dispute – Election

15. Area of Dispute Category – Cancellation



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445

16. Provisions of law involved-

Rule 17, Orissa Grama Panchayat Election Rules, 1965

Rule 17(2), Orissa Grama Panchayat Election Rules, 1965

Rule 17(3), Orissa Grama Panchayat Election Rules, 1965

Rule 20; Orissa Panchayat Samiti (Election) Rules, 1991

Rule 5; Orissa Zilla Parishad (Election) Rules, 1994

Rule 7; Constitution of India

Article 19, Constitution of India - Article 243K, Constitution of India - Article 324


The petitioner in the instant case was a candidate for the office of the Sarpach of Mitrapur

Grama Panchayat election, had assailed the Notification issued by the State Election

Commission putting restrictions on the use of name of any political party in the campaigning for

the election.


Rule 7 of the Orissa Zilla Parishad (Election) Rules, 1994 enabled the candidates for a Zilla

Parishad Election to contest in a political party basis and the candidate as such is entitled to use

with the political party symbols. Thus, it was clear that the rule making authority had

consciously avoided for use of symbols to contest the election for the post of Sarpanch or Ward

Members and Panchayat Samiti members on political party basis. It appeared that the intention

of the Legislature was not to allow election to be contested at the Grama Panchayat level and the

block level on party basis, otherwise they would not have made such distinction as far as symbol

is concerned. Therefore, the Court came to the conclusion that the instruction issued by the State

Election Commission does not violate any fundamental right guaranteed under the Constitution

of India nor it goes against the Statute or Rules framed there under governing the three-

tier Panchayat Raj Institutions elections as the symbols that had been mentioned in Rule 17 had

not been allotted to any political party, national or regional by the State Election Commissioner

to ensure that is no involvement of political parties in the Gram Panchayat election. As the Court

found out no merit in the writ application, the same was dismissed.




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446

Rule 7 of the Orissa Zilla Parishad (Election) Rules, 1994 enables the candidates for a Zilla

Parishad Election to contest in a political party basis and the candidate as such is entitled to use

the political party symbols.

20. Obiter Dicta-

Prohibition on part of Election Commissioner not to allot symbol allotted to political parties by

Election Commissioner was to ensure that there was no involvement of political parties in Gram

Panchayat election.



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447

II. Sarat Kumar Mohanty v. State of Orissa

1. State - Odisha


3. Bench - 2 judge bench (Division Bench)

4. Name of bench - G.B Patnaik and R.K Patra, JJ.

5. Case no- Original Jurisdiction Case No. 876 of 1992

6. Name of the case- Sarat Kumar Mohanty v. State of Orissa

7. Date of judgement- April 26, 1994

8. Appellant - Sarat Kumar Mohanty

9. Respondent - State of Orissa


11. Main law points involved- Whether sub-sections (6) and (7) of Section 58 of

the Orissa Grama Panchayat Act, 1964 is constitutionally valid?


Constitutionality of sub-sections (6) and (7) of Section 58 of the Orissa Grama Panchayat Act,

1964 is constitutionally valid


14. Area of dispute – Devolution

15. Dispute category- Devolution of power related.

16. Provisions of law involved- Section 58(6), Orissa Gram Panchayat Act, 1964 Section

58(7); Constitution of India, Article 14; Orissa Agricultural Produce Markets Act, 1957 ,Section

4(4); Orissa Gram Panchayat (Amendment) Act, 1991

17. Gist of case-

The petitioner was a retired Assistant Director of Markets, Research and Survey. He claimed to

be an agriculturist. He stated that during his service career he had the occasion to work for the

implementation of different provisions of Orissa Agricultural Produce Markets Act, 1956.

According to him on account of implementation of different provisions of the Market Act there

has been boost of better marketing of agricultural produce and the interest of the common

agriculturists is being protected from the exploitation of middle-men. It is his case that the

provisions contained in sub-sections (6) and (7) which came to be inserted to Section 58 of the

Grama Panchayat Act by Orissa Grama Panchayat (Amendment) Act, 1991 (Orissa Act 9 of



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448

1991) have prejudicially effected the interest of common agriculturists besides crippling

different provisions of the Market Act


The court held that sub-section (7) of Section 58 of the Grama Panchayat Act takes care of any

arbitrary or illegal act of the Collector in granting (non-granting) of written permission. It was an

inbuilt provision to nip any arbitrary or illegal decision of the Collector because if any

permission of the Collector is found to be prejudicial to the interest of the grama by invoking

this provision suo motu or otherwise the State Government if, satisfied after such enquiry as it

may deem fit, may review and cancel the permission so granted. For the aforementioned reasons,

the court could not find any merit in the contention of the petitioner that the impugned

provisions are violative of Article 14 of the Constitution.

In the result, the writ petition was devoid of any merit which was accordingly dismissed.


The requirement of written permission from the Collector cannot be said to be arbitrary or

unreasonable under Subsection (7) of Section 58 of the Orissa Grama Panchayat Act

20. Obiter Dicta-

A written permission from the Collector would definitely operate as a check on the arbitrary and

whimsical desire of a market committee to get the Land or building in possession of a Grama

Panchayat and appropriate to itself the income derived from such land or building.



802

449

III. Ram Krishna Padhy & others v. State of Orissa

1. State - Orissa


3. Bench – Double

4. Name of bench - I.M Quddusi and N. Prusty, JJ

5. Case no- W.P(C) No. 2305 of 2004

6. Name of the case- Ram Krishna Padhy & others v. State of Orissa

7. Date of judgement- 24-01 -2007

8. Appellant - Ram Krishna Padhy



11. Main law points involved- Whether the Government notification dated 10.2.2004 fixing

the office headquarters of the Gram Sasan of Gram Bilamala in Tumudibandha Block of

Kandhamal District at village Khadapanga under Section 4(3) of the OrissaGram Panchayat Act

(hereinafter called ‘the Act’) issued by the Government of Orissa,Panchayati Raj (GP)

Department is right or not?

12. Grounds of Challenge- Legality of the Government notification dated 10.2.2004 fixing

the office headquarters of the Gram Sasan of Gram Bilamala in Tumudibandha Block of

Kandhamal District at village Khadapanga under Section 4(3) of the OrissaGram Panchayat Act

(hereinafter called ‘the Act’)


• Asif Hammed v. State of Jammu and Kashmir, reported in 1989 Supp (2) SCC 364 :

A.I.R 1989 Supreme Court 1899 ,

• Union of India v. Flight Cadet Ashish Rai, 2006 (1) SCC 271,

• Bijay Kumar Behera v. State of Orissa; reported in 2001 (1) OLR 168,

14. Area of dispute – Jurisdiction

15. Dispute category- Dispute over territorial jurisdiction


The Bilamala Gram Panchayat was constituted on 20.10.2001 in exercise of powers conferred on

the State Government by Section 3 read with Section 149 of the Act. Against fixing of



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450

headquarters of the said Gram Panchayat at Bilamala, some persons made representations before

the State Government and when no decision was taken thereon, the writ application registered as

W.P(C) No. 7508 of 2003 filed by them in this Court was disposed of vide Order dated

29.9.2003 with the direction to dispose of the representations of the Petitioners and communicate

the decision within two months and till a final order is passed, the headquarters of Gram

Panchayat will not be constructed. Thereafter, the Government asked the Collector to examine

the matter and submit his report, on which the Collector asked the Sarpanch to convene a

meeting of Gram Panchayat for discussion regarding shifting of the headquarters of the Gram

Panchayat. Thereafter, the Gram Panchayat passed a resolution on 9.12.2003 for shifting of the

headquarters of Bilamala Gram Panchayat form Bilamala to Khadapanga. Subsequently, the

Panchayat Samiti concerned passed a similar resolution. Thereafter, the Collector submitted his

report after getting necessary verification done Sarpanch Bilamala is not holding the G.P.s

monthly meeting at the G.P hdqrs. The instant Writ Petition was filed by the Petitioners, of

whom Petitioner No. 1 is the Naib Sarpanch and Petitioner nos. 2 to 8 are the Ward Members of

Bilamala Grama Panchayat, challenging the Government notification dated 10.2.2004 fixing the

office headquarters of the Gram Sasan of Gram Bilamala in Tumudibandha Block of Kandhamal

District at village Khadapanga under Section 4(3) of the OrissaGram Panchayat Act (hereinafter

called ‘the Act’) issued by the Government of Orissa,Panchayati Raj (GP) Department.

17. Provision of law Involved- Section 4(3) of the OrissaGram Panchayat Act


The Court held that as per page nos. 11 and 12 of the note-sheet of the concerned record dated

4.2.2004, it appeared that the State Government has thoroughly considered the report of the

Collector along with the resolution of the concerned Panchayat Samiti and the Gram

Panchayat and had taken a decision on their basis. There was an allegation that the Panchayat

resolution was a fake resolution, but the Collector got it verified andmentioned in his above

quoted portion of his report that the same had no basis. Besides this, there was a resolution of

Panchayat Samiti mentioning the geographical and other situations of village Khadapanga.

Therefore, it cannot be said that the Government had not applied their mind before taking a

decision regarding shifting of headquarters.




804

451

So long as the discretion is exercised by the Government bona fidely, the Court cannot interfere

with but if it is exercised arbitrarily basing on extraneous considerations or has been exercised

ignoring relevant materials, the Court can interfere as the same was without application of mind.




805

452

IV. Rajkishore Dalai v. Kalandi Pradhan and another

1. State - Odisha


3. Bench – Division Bench (2 Judges Bench)

4. Name of bench – P.K Tripathy and A.K Parichha , JJ

5. Case no- W.P (C) No. 6095 of 2004

6. Name of the case- Rajkishore Dalai v. Kalandi Pradhan and another

7. Date of judgement- July 20, 2005

8. Appellant - Rajkishore Dalai

9. Respondent - Kalandi Pradhan and another

10. Case type – Writ Petition(Civil)


Whether the petitioner could be disqualified from holding the office of the Grama Panchayat

under Section 25(1)(v) of the Orissa Gram Panchayat Act, 1964?

12. Grounds of Challenge- That the disqualification provided in Section 25(1)(v) of the Act

does not apply to a candidate who begets twin children in the second conception.


• Javed v. State of Haryana, (2003) 8 SCC 369 : AIR 2003 SC 3057;

• Pravakar Pradhan v. Bhaktabandhu Sahoo, 1998 (II) OLR 690

14. Area of dispute – Disqualification

15. Dispute category: More than 2 child related

16. Provision of law: Section 25(1)(v) of the Orissa Gram Panchayat Act,1964?


In the election held for the post of Sarpanch, Baghuapaili Grama Panchayat in the year 2002 the

petitioner, Opp. Party No. 1 and others had filed their nomination papers and accordingly

contested the election. The petitioner had polled the highest number of votes and was declared as

elected Sarpanch of the Baghuapaili Grama Panchayat and was allowed to assume the office of

Sarpanch. Opp. Party No. 1 who had polled third highest votes filed a petition under Section 31

of the Orissa Grama panchayat Act before the learned Civil Judge (Jr. Division), Nayagarh vide

Election Misc. Case No. 17 of 2002 with a prayer to declare the election of the petitioner as null

and void basically on the plea that the petitioner had more than two children on the date of filing



806

453

nomination paper for the election and has to be disqualified under the provision of Section

25(1)(v) of the impugned Act.


The court considered the view that if a person has twin children on the first pregnancy, birth of

any child or children on second pregnancy would disqualify him; but if a person has one child

from the first pregnancy and gets twin or triplet on second pregnancy, he cannot be disqualified

under Section 25(1)(v) of the Act. In the instant case the oral evidence and the records

maintained by the public authority relating to death and birth of the locality was verified by the

court and it clearly showed that the petitioner had one daughter from the first

pregnancy and twin sons on the second pregnancy of his wife. So, in view of the above noted

ratio, he could not be disqualified from holding the office of the Grama Panchayat under Section

25(1)(v) of the Act. Thereby the court quashed the impugned judgments and allowed the Writ

Petition.


If a person has twin children on the first pregnancy, birth of any child or children on second

pregnancy would disqualify him; but if a person has one child from the first pregnancy and gets

twin or triplet on second pregnancy, he cannot be disqualified under Section 25(1)(v) of the Act.

20. Obiter Dicta-

Birth of twin or triplet not being an intentional act of the person concerned, the person cannot be

accused of violating the family welfare/family planning norms or offending the cause of social

justice.



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454

V. Prabhasini Nayak & Ors v. State of Orissa & Ors

1. State - Odisha


3. Bench – Single

4. Name of bench – M.M Das J

5. Case no- W.P (C) No. 14917 of 2005

6. Name of the case- Prabhasini Nayak & Ors v. State of Orissa & Ors

7. Date of judgement- January 14, 2009

8. Appellant - Prabhasini Nayak & Ors

9. Respondent - State of Orissa & Ors

10. Case type – Writ Petition (Civil)

11. Main law points involved- Whether the decision of the Government in fixing the

headquarters of a Grama Panchayat in a village different from the village in the name of which,

the Grama Panchayat was extraneous?

12. Grounds of challenge- The grievance of the Petitioners is that the reconstitution of the

Grama Panchayats is in variance with the statutory provisions and the guidelines provided for

the purpose. In some cases, it is also contrary to the recommendation of the Collector and on

extraneous considerations under Articles 226and 227 of the Constitution of India


• Pramod Kumar Bohidar v. State of Orissa 73 (1992) CLT 692;

• Bijay Kumar Behera v. State of Orissa AIR 2001 Orissa 164;

• Pedenti Malana v. State of Orissa, 2004 (1) OLR 493

14. Area of dispute – Power

15. Dispute category – Dispute on powers of State/ZP/ BP/GP

16. Provision of law: Section 3, Orissa Grama Panchayat Act


Petitioners taking into consideration the population factor of 11 villages on the basis of 1991

census report submitted a report to constitute a new Grama Panchayat consisting of the said 11

villages. The proposal was approved by the Block Development Officer, Nuagaon and was sent

to the Collector. The petitioners had also proposed that the village Udayapur should be the

headquarters of the proposed Grama Panchayat on the ground that the said village Udayapur is a



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455

centrally located village having communication facility to all the other villages. It was

historically and culturally the most important village and was also a tourist centre on account of

the location of Dasarathi Pattnaik Library and Museum known as “Banchhanidhi Pathagara”, Sri

Aurovinda Sangrahalaya and Jadumani Sahitya Sansada. It was also the birth place of a great

person, namely, Dasarathi Pattnaik popularly known as “DASIA AJA. Adding to these the

petitioner expressed that the said village also had more infrastructure facilities, such as, Post

Office and school and vacant lands for construction of the Panchayat Office. However, in spite

of such demand and the recommendation of the proposal by the Block Development Officer

according to the Petitioners owing to the pressure of the local M.L.A some interpolations were

made and in place of Udayapur, the name of village Sikhargochha was inserted and was

approved by the government.


A bare perusal of the report of the Collector showed that the Collector recommended Udayapur

as the headquarters of the Grama Panchayat after taking into consideration all aspects, such as,

accessibility of the said village, availability of infrastructure facilities etc. On a close scrutiny of

all the materials available the honourable court held that the decision of the Government fixing

Sikhargochha as the headquarters of the Grama Panchayat was arbitrary and on extraneous

considerations, not supported by reasons. Thereby the decision dated 24.11.2005 of the

Government as taken by the Minister, Panchayati Raj and Culture, Orissa could not be sustained.

The said letter was therefore, quashed. It was further directed that the Government shall issue

notification fixing the headquarters of Udayapur Grama Panchayat at Udayapur within a period

of one month from the date of communication of this order. The Writ Petition was accordingly

allowed.


Decision of the Government, fixing the headquarters of the Grama Panchayat in a village other

than the village in the name of which the Grama has been constituted, could not be arbitrarily

done on extraneous consideration.




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VI. Pedenti Malana and others v. State of Orissa and others

1. State - Odisha


3. Bench – Division Bench ( 2 judges bench)

4. Name of bench – Sujit Barman Roy, C.J and A.S Naidu, J

5. Case no- O.J.C No. 3945 of 2002

6. Name of the case- Pedenti Malana and others v. State of Orissa and others

7. Date of judgement- March 9, 2004

8. Appellant - Pedenti Malana and others

9. Respondent - State of Orissa and others


11. Main law points involved- Whether the notification dated 20-1-2001 by the

Government of Orissa is in consonance with the provisions of sub-section (3) of Section 4 of the

Orissa Gram Panchayat Act, 1964?

12. Grounds of challenge- Legality of Government notification dated 20-01-2001 under

sub-section (3) of Section 4 of the Orissa Gram Panchayat Act, 1964


• Pramod Kumar Bohidar v. State of Orissa 1992) 73 CLT 692;

• Bijay Kumar Behera v. State of Orissa AIR 2001 Orissa 164

14. Area of dispute – Powers

15. Dispute category-Dispute on powers of State/ZP/BP/GP

16. Provision of law- Section 3 read with Section 149 of the Orissa Grama Panchayat Act,

1964

17. Gist of case–

This was the second Writ application filed by the petitioners inter alia challenging fixation of

headquarters of Karlakona Grama Panchayat by Notification dated 20-1-2001 by the

Government of Orissa in the Panchayati Raj (G.P) Department in exercise of the powers

conferred by Section 3 read with Section 149 of the Orissa Grama Panchayat Act, 1964

constituted a Grama in the name of Karlakona.




810

457

The court came at a conclusion that the notification fixing the headquarters of Karlakona Grama

Panchayat at village Karlakona had not suffered from any illegality, and the same was in

consonance with the provisions of sub-section (3) of Section 4 of the Act which states that the

headquarters of the Grama Sasan should be in ordinary course situated, in the village bearing the

name of the Grama and that was exactly what had been done in the present case. Hence the court

held that it was not inclined to interfere in the matter and dismissed this writ application.


The official headquarters of the Grama Panchayat should be situated in the village bearing the

name of the Grama unless otherwise ordered by the State Government.

20. Obiter Dicta-

Only when Government desires to differ from the said guidelines and passes an order for

situating the headquarters of the Grama Panchayat in some other village not bearing the name of

the Grama, then, it has to follow the guidelines stipulated in the decisions supra and not

otherwise.



811

458

VII. Nutan Kumar Rout v. State of Orissa and others

1. State - Odisha


3. Bench – Single

4. Name of bench – M.M Das, J.

5. Case no- W.P(C) No. 9057 of 2009

6. Name of the case- Nutan Kumar Rout v. State of Orissa and others

7. Date of judgement- September 16, 2010

8. Appellant - Nutan Kumar Rout

9. Respondent - . State of Orissa and others

10. Case type – Writ petition (civil)

11. Main law points involved- Whether Section 25(1) (g) read with sub-section (4)(a) of

the Orissa Gram Panchayat Act violated the provisions under Section 115(1) of the Act ?


Legality of reading Section 25(1) (g) read with sub-section (4)(a) of the Orissa Gram Panchayat

Act under Section 115(1) of the Act

13. Reference taken from the case- Padma Reddy v. State of Orissa, 2006 (Supp.-II) OLR

842 and Laxmidhar Tripathy v. State of Orissa, 2006 (Supp.-II) OLR 939; Canara Bank v. Shri

Debasis Das, AIR 2003 SC 2041

14. Area of Dispute – Removal and non-confidence motion

15. Area of Dispute Category – Inappropriate conduct of sarpanch

16. Provisions of law – Section 25(1)(g) read with sub-section (4)(a) and Section 115(1) of

the Orissa Gram Panchayat Act , 1964

17. Gist of case–

The petitioner contested the election to the office of the Sarpanch of Dorada Grama Panchayat

under Athagarh Block in the district of Cuttack and was declared elected having polled majority

of valid votes in his favour. It is alleged by the petitioner that a false allegation was leveled

against him about demand of bribe of Rs. 3500/- from one Akhaya Kumar Lenka, who with a

pre-plan came with the vigilance officials to the petitioner on 23.1.2008 along with the amount

of Rs. 3500/- and the vigilance officials prepared a detection report with the allegation that the

petitioner accepted the said amount on demand from Shri Lenka for passing his bill for a



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contract work. On the basis of the detection report, the Government passed an order on

23.2.2008 suspending the petitioner from the office of the Sarpanch.


Section 25(1)(g) read with sub-section (4)(a) of the Act also clearly showed that the State

Government may remove the Sarpanch, if he was convicted for an offence involving moral

turpitude and sentenced to imprisonment for a period not less than six months. Such a

contingency does not arise in the present case. Section 115(1) of the Act also does not

contemplate that a mere allegation, if made against the Sarpanch with regard to commission of a

criminal offence, the Government can remove him from his office. The conclusive finding that

the petitioner is guilty of a criminal act solely basing on mere allegations and forming the same

to be the basis of the order of removal from the office of the Sarpanch clearly amounts to pre-

judging the issue, before the criminal case was tried against the petitioner (in the event where a

charge-sheet was submitted against him). Hereby the court further expatiated that the

Government had exceeded its jurisdiction in passing the order of removal against the petitioner

by enquiring into an allegation of a criminal act against the petitioner, which is under

investigation by the Vigilance Police and in which, if charge-sheet is filed, the petitioner has a

right to take his defence while facing the trial.

Writ petition allowed.


A cardinal principle of law is that there is no presumption of guilt against a person with regard to

commission of a criminal offence until the same is proved against him beyond reasonable doubt,

leading to recording of an order of conviction against him.

20. Obiter Dicta – ---



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VIII. Nabaghana Das and Others v. State of Orissa and Others

1. State - Orissa

2. Court - High Court Of Orissa

3. Bench – 2 judge bench (Division Bench)

4. Name of bench- D.P Mohapatra and R.K Patra, JJ.

5. Case no- O.J.C No. 7324 of 1993

6. Name of the case- Nabaghana Das and Others v. State of Orissa and Others

7. Date of judgement- January 28, 1994

8. Appellant - Nabaghana Das and Others

9. Respondent - State of Orissa and Others


11. Main law points involved- Whether the No. 15292.GP dated 24-9-1993 of the

Government of Orissa in the Panchayati Raj (G.P) Department made under sub-section (3) of

section 4 of the Orissa Grama Panchayat Act, 1964 locating the office and headquarters of the

Padmapur Grama Sasan in the village ‘Bankeswar within the limits of the said Grama ought to

be quashed for being based on irrelevant considerations?

12. Grounds of Challenge- Legality of the notificationNo. 15292.GP dated 24-9-1993 of the

Government of Orissa in the Panchayati Raj (G.P) Department made under sub-section (3) of

section 4 of the Orissa Grama Panchayat Act, 1964 locating the office and headquarters of the

Padmapur Grama Sasan in the village ‘Bankeswar within the limits of the said Grama.

13. Reference taken from the case- Pramod Kumar Bohidar v. State of Orissa, 73(1992)

C.L.T 692


15. Area of Dispute category – Dispute among Pacnchayats and between panchayat and

State Agencies

16. Provisons of law - Article 226 of the Constitution of India

17. Gist of case -

The petitioners claimed to be the residents of village Padmapur. Their case was that in the wake

of reorganisation of Grama Panchayats in the State, the residents of Padmapur made

representation to the Government for division of the erstwhile Gudu Grama Panchayat into two

Grama Panchayats and the Government by considering the population and other factors



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constituted two separate Gramas-as Padmapur (new) andGudu by Government notification No.

6881 dated 25-3-1992 at Annexure-3 andPadmapur was chosen as the headquarters of the

Padmapur Grama Sasan as its populatian was higher then other villages constituting the Grama.

The petitioners allege that the local M.L.A at the request of the residents of Padmapur

recommended Padmapur to be the headquarters of the Padmapur Grama Sasan. The petitioners

in this writ petition under Article 226 of the Constitution of India sought to assail the validity of

the notification No. 15292. GP dated 24-9-1993 of the Government of Orissa in

the Panchayati Raj (G.P) Department made under sub-section (3) of section 4 of

the Orissa Grama Panchayat Act, 1964- (hereinafter referred to as ‘the Act’) locating the

office and headquarters of the Padmapur Grama Sasan in the village ‘Bankeswar within the

limits of the said Grama.

18. Operating portion of the judgement—

Sub-section (3) of section 4 of the Act provides that the office and headquarters of the Grama

Sasan shall be situated within the limits of the Grama and unless otherwise ordered by the State

Government in the village bearing the name of the Grama. The statute has not prescribed the

mode of exercising the discretion in the matter.The situation, population an dthe availability of

existing infrastructure are relevant materials for location of the headquarters. The Government

after taking those factors into consideration decided to shift the headquarters from Padmpur to

Bankeswar on the basis of which the impugned notification has been issued. There is nothing on

record to suggest that there was non-application of mind to relevant materials by the

Government nor do we find any material from which it could be said that irrelevant materials

were taken into consideration thereby vitiating the decision. For the reasons aforesaid, no legal

flaw can be founds with the impugned notification. In the result, there is no merit in the petition

which is accordingly dismissed.

19. Ratio Decidendi: The statute has not prescribed the mode of exercising the discretion in

the matter, therefore the situation, population and the availability of existing infrastructure are

relevant materials for location of the headquarters




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IX. Mahadev Pradhan v. State Of Orissa, Represented Through

Secretary, Panchayati Raj And Others

1. State - Orissa


3. Bench -2 judge bench (Division Bench)

4. Name of bench - A. Pasayat and K.L Issrani, JJ.

5. Case no- O.J.C No. 4026 of 1994

6. Name of the case- Mahadev Pradhan v.State of Orissa, Represented Through

Secretary, Panchayati Raj and Others


8. Appellant - Mahadev Pradhan

9. Respondent -State of Orissa, Represented Through Secretary, Panchayati Raj and Others

10. Case type – Writ petition

11. Main law points involved- Whether the Collector’s conclusion that continuance of

petitioner as Sarpanch would be detrimental to interest of the Grama Panchayat and inhabitants

of the Grama, is based on no material is violation of sub-section (1) of section 115?

12. Grounds of challenge- Legality of the Collector’s conclusion that continuance of

petitioner as Sarpanch would be detrimental to interest of the Grama Panchayat and inhabitants

of the Grama.

13. Reference taken from the case- Tarini Tripathy v. Collector, Koraput, 62(1986) C.L.T

548, and in Krutibash Rout v.Collector, Cuttack, Vol. 32 (1990) O.J.D 106 (Civil).

14. Area of dispute – Removal and no- confidence motion

15. Area of Dispute Category : Suspension of surpunch

16. Provision of law- Orissa Grama Panchayat Act - Section 16(1), Orissa Grama

Panchayat Act - Section 40(A), Orissa Grama Panchayat Act - Section 45(C), Orissa Grama

Panchayat Act - Section 115(1); Indian Penal Code (IPC) - Section 167, Indian Penal Code (IPC)

- Section 467, Indian Penal Code (IPC) - Section 468, Indian Penal Code (IPC).

17. Gist of case -

Petitioner was elected as Sarpanch of Badabahal Grama Panchayat in the election held in 1992,

results of which were declared on 31-5-1992. Petitioner assumed office of Sarpanch on 28-6-



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1992. By impugned order dated 21-5-1994, petitioner was placed under suspension by the

Collector, Sambalpur, who was of the view that further continuance of the petitioner would be

detrimental to the interest of Grama Panchayat and inhabitants of the Grama. The matter was

also reported to the State Government as required under section 115(1).


The court directed the Government to take a final decision in the matter within two months from

the date of receipt of our order after due notice to the petitioner as contemplated in sub-section

(2) of section 115 of the Act. It was held that at this stage, it would not be proper to interfere as

the matter is stated to be under consideration of the Government. A person placed under

suspension has right to be heard before a final decision is taken and the same is prescribed in

sub-section (2) itself. This is a statutory recognition of the principles of natural justice. The

universally respected rule of “audi alteram partem” (hear the other side) has been embodied in

the provision. What follows from the rule is that “qui aliquid statuetit parte inaudite altera

requum licet dixerit, haud requm facerit” (he who shall decide anything without other side

having been heard, although he may have said what is right, will not have done what is right).

But an early decision in the matter is always appropriate in the interest of all concerned. If a

person has not committed any contravention as alleged, certainly he should not be kept in

animated suspension for a very long period. On the other hand, if a person deserves removal,

sooner it is done better it would be for the Grama Panchayat, and inhabitants of the Grama.

The writ application was disposed off.

19. Ratio Decidendi -

The universally respected rule of “audi alteram partem” (hear the other side) has been embodied

under Section 115(2) of the Act.

20. Obiter Dicta-

In terms of sub-section (2) of section 115 of the Act, the State Government on the report of the

Collector made under sub-section (1), or if Government themselves are of the opinion that

circumstances specified in sub-section (1) of section 115 in relation to a Sarpanch or Naib-

Sarpanch exist, then on its motion, after giving the concerned per son reasonable opportunity of

showing cause, may remove him from the office of Sarpanch or Naib-Sarpanch, as the case may

be. Action of the Collector is subject to scrutiny by the State Government. In terms of sub-

section (3) of section 115, State Government have power to suspend if not already under



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suspension, pending disposal of the proceeding under sub-section (2). It may also revoke the

order of suspension during pendency of the proceeding. In an appropriate case it may differ from

the conclusions arrived at by the Collector regarding action to be taken against the Sarpanch or

Naib-Sarpanch, as the case may be, and may refuse to remove him.



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X. Laxmidhar Tripathy v. State of Orissa and others

1. State - Odisha


3. Bench – Division Bench(2 judge Bench)

4. Name of bench – I.M Quddusi and N.Prusty, JJ

5. Case no- W.P(C) No. 5164 of 2006

6. Name of the case- Laxmidhar Tripathy v. State of Orissa and others

7. Date of judgement- December 22, 2006

8. Appellant - Laxmidhar Tripathy


10. Case type – Writ Petition( Civil)

11. Main law points involved- Whether the impugned Order dated 30.03.2006 passed by the

State Government removing the Petitioner from the office of Chairman, Nayagarh Panchayat

Samiti was valid?

12. Grounds of Challenge- Validity of the impugned Order dated 30.03.2006 passed by the

State Government removing the Petitioner from the office of Chairman, Nayagarh Panchayat.


• Smt. Bishnupriya Jenav. State of Orissa, 2006 (II) OLR 715;

• Canara Bank v. Shri. Debasis Das, (2003) 4 SCC 557 : AIR 2003 SC 2041

14. Area of Dispute – Removal and no- confidence motion

15. Area of Dispute Category : Suspension of surpunch

16. Provision of law- Prevention of Corruption Act, 1988 - Section 13(1); Orissa Grama

Panchayat Act - Section 16(1), Orissa Grama Panchayat Act - Section 40(A), Orissa Grama

Panchayat Act - Section 45(C), Orissa Grama Panchayat Act - Section 115(1); Indian Penal

Code (IPC) - Section 167, Indian Penal Code (IPC) - Section 467, Indian Penal Code (IPC) -

Section 468, Indian Penal Code (IPC) - Section 472, Indian Penal Code (IPC) - Section 477


Petitioner was elected as Chairman of Nayagarh Panchayat Samiti in the last election held on

11.3.2002 A representation was made by on Sagarika Rath-Member, Nayagarh Panchayat Samiti

alleging misappropriation of Panchayat Samiti funds by its Chairman(Petitioner) vis-a-vis non-

execution of developmental works. Since her representation was not considered, she filed a Writ



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Petition W.P(C) No. 12999 of 2004 in this Court which was disposed of vide Order dated

17.12.2004 with a direction to the Secretary to Government of Orissa in

Panchayati Raj (G.P)”Department, Bhubaneswar to take a final decision on the aforesaid

representation within a period of six weeks from the date of production of a certified copy of that

order. Thereafter, vide Order dated 4.2.2005 the Deputy Secretary to Government intimated the

Petitioner as well as Sagarika Rath (complaint) to appear before the Commissioner-cum-

Secretary to Government, Panchayati Raj Department for personal hearing on 7.2.2005 at 1. 00

P.M but the same was adjourned to 31.3.2005 at 11.00 A.M on which date the Petitioner sought

four weeks time to appear before the Commissioner. On 8.4.2005, a charge memo was issued by

the State Government along with an order to show cause within thirty days. In respect of charge

memo issued by the Government to the Petitioner, the Petitioner demanded copies of certain

documents. But vide order-dated 16.6.2005 the State Government removed the Petitioner from

the office of Chairman, Nayagarh Panchayat Samiti which was challenged by the Petitioner in

the Writ Petition (W.P(C) No. 7219 of 2005).


The court held that in the instant case no inquiry has been conducted by the State Government

in spite of the specification direction issued by this Court in W.P(C) No. 7219 of 2005 and the

Petitioner has not been given “reasonable opportunity of “being heard”. Further the court

lamented that in the absence of any specific procedure or rule in arriving at a conclusion by the

Government against a person holding the office of Sarpanch, it was necessary that such person

should be informed about the charges against him, should also be informed regarding the

evidence relied upon in support of the charges, should be provided an opportunity to submit his

explanation should be asked as to whether he desires to adduce any evidence in rebuttal and also

desires to be heard in person, and should be provided such opportunity accordingly. The decision

should only be taken thereafter taking into consideration all evidence relied upon in support of

the charges as well as produced by the person so charged in rebuttal thereof.” Thereby the

impugned order of removal of the Petitioner from the office of Chairman, Nayagarh Panchayat

Samiti was not sustainable in the eye of law and the same was liable to be quashed.Writ Petition

was allowed.




820

467

In the absence of any specific procedure or rule in arriving at a conclusion by the Government

against a person holding the office of Sarpanch, it was necessary that such person should be

informed about the charges against him, should also be informed regarding the evidence relied

upon in support of the charges, should be provided an opportunity to submit his explanation

should be asked as to whether he desires to adduce any evidence in rebuttal and also desires to

be heard in person, and should be provided such opportunity accordingly.

20. Obiter Dicta : ---



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XI. Harihar Swain and Others v. State of Orissa and Other

1. State - Odisha


3. Bench – Division Bench ( 2 judges Bench)

4. Name of bench – A.K Patnaik and M. Papanna, JJ

5. Case no- W.P (C) No. 6174 of 2003

6. Name of the case- Harihar Swain and Others v. State of Orissa and Other


8. Appellant - Harihar Swain and Others

9. Respondent - State of Orissa and Others


11. Main law points involved- Whether the provisions of sub-section (3) of Section 4 of

the Orissa Grama Panchayats Act, 1964 was complied with?

12. Ground of Challenge- Compliance with the provisions of sub-section (3) of Section 4

of the Orissa Grama Panchayats Act, 1964


14. Area of Dispute – Devolution

15. Area of Dispute Category-Devolution of power related

16. Provisions of law- Orissa Grama Panchayats Act, 1964 - Section 4(3);

17. Gist of case-

Petitioners held that under Sub-section (3) of Section 4 of the Orissa Grama Panchayats Act,

1964 the office and headquarters of the Grama Sasan shall be situated within the limits of the

Grama and unless otherwise ordered by the State Government in the village bearing the name of

the Grama. It was argued that since the name of the Grama is Nimani, the office

and headquarters of the Grama Sasan of Grama Nimani should have been situated in village

Nimani and not in Kalika Prasad.


Court opined that Sub-section (3) of Section 4 of the Act empowered the State government to

decide the location of the Office and the headquarters of a Grama Sasan and such power can be



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exercised by the State Government from time to time depending upon the requirements of public

interest and there was no statutory bar for the Government to reconsider and take a fresh

decision in the public interest. Fixation of headquarters of a Grama Panchayat in any particular

village was essentially an administrative matter and so long as relevant considerations have

weighed with the Government in fixing the headquarters in a particular village, the High Court

would not interfere with the decision of the Government like an Appellate Authority and quash

the decision of the Government. High Court was satisfied that the power had been exercised

within the limits of law after taking into account the relevant considerations. High Court held

that it would not interfere with the same on the ground that it should have been located at a

different place. Thereby writ petition was dismissed.


Under Article 226 of the Constitution, the court has only to see whether the administrative power

has been exercised within the limits of law and taking into account the relevant

considerations and so long as the High Court is satisfied that the power has been exercised

within the limits of law after taking into account the relevant considerations, the High Court will

not interfere.

20. Obiter Dicta:

Power has been vested in the State Government to decide the location of the Office and the

headquarters of a Grama Sasan and such power can be exercised by the State Government from

time to time depending upon the requirements of public interest and there is no statutory bar for

the Government to reconsider and take a fresh decision in the public interest.



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XII. Ajay Kumar Sahoo v. State of Odisha & Other

1. State - Odisha


3. Bench – Single

4. Name of bench – C.R Dash .J

5. Case no- W.P (C) No. 16586 of 2014

6. Name of the case- Ajay Kumar Sahoo v. State of Odisha & Other

7. Date of judgement- August 28, 2015

8. Appellant - Ajay Kumar Sahoo

9. Respondent - State of Odisha & Other


11. Main law points involved- Whether the 15 days notice as contemplated under Section

24(2)(c) of the Orissa Grama Panchayat Act?

12. Grounds of challenge- Compliance with Section 24(2)(c) of the Orissa Grama

Panchayat Act


• Smt. Heeramani Munda v. The Collector, Keonjhar, 99 (2005) CLT 180

• Nilambar Majhi v. Secretary to Govt. of Orissa, Panchayati RajDeptt., 2005 (II) OLR –

659;

• Sarat Padhi v. State of Orissa, 65 (1988) C.L.T 122/A.I.R 1988 Orissa 116;

14. Area of Dispute Name – Removal and no – confidence motion

15. Area of Dispute Category- Suspension of surpunch

16. Provisions of law involved- Section 24(2)(c) of the Orissa Grama Panchayat Act


The present petitioner was elected as Sarpanch of Padmabati Grama Panchayat on 21.02.2012

While he was acting as such, some of the Ward Members of the aforesaid Grama Panchayat sent

requisition to the Sub-Collector, Nayagarh-opposite party No. 3 on 19.03.2014 for convening a

meeting to record no-confidence against the petitioner. Subsequently, the said Ward Members,

vide their letter dated 28.03.2014, withdrew the requisition made by them. Again, on

10.08.2014, a fresh requisition accompanied with proposed resolution to be moved against the



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petitioner for no-confidence was given to the Sub-Collector, Nayagarh signed by requisite

number of Ward Members as required under the law. The Sub-Collector issued notice dated

19.08.2014 to the petitioner, calling upon him to attend the meeting of “No confidence Motion”

to be held on 05.09.2014 in the office of the Grama Panchayat at 11 A.M. Petitioner challenged,

in this writ application, the notice dated 19.08.2014 issued by the Sub-Collector.


Section-24(3) is applicable only when, a meeting has already been held. But it has no

application, if no meeting has been held pursuant to any resolution. From the scheme of Section-

24, it is clear that any number of requisitions may be sent by the members of the Grama

Panchayat, but once a meeting is convened on the basis of the proposed resolution, no further

meeting can be held within a period of one year from the date of such meeting. In the present

case, when no meeting was ever held for recording want of confidence in the petitioner, before

issuance of the impugned notice , the provision of sub-section-(3) of Section-24 would not be

applicable at all.

The writ application is dismissed. The result of “No Confidence Motion” kept in the sealed

cover, be published forthwith and consequent action be taken in accordance with law.


If there is some delay in dispatch of notice from the office of the Sub-Collector, the same shall

not invalidate the meeting of no-confidence unless prejudice is writ large or shown to have

occasioned so far as the petitioner is concerned.

20. Obiter Dicta–

The Scheme of the notice contemplated under Section 24(2)(c) may be divided into three parts:-

(i) requirement of giving the notice, (ii) fixing the margin of time between the date of the

notice and the date of the meeting and (iii) service of notice on the members. If there is any

breach of these two conditions, then the meeting will be invalid without any question of

prejudice. But the third condition, i.e, the mode of service of the failure by any member to

receive the notice at all or allowing him less than 15 clear days before the date of the meeting,

will not render the meeting invalid. This requirement is only directory. This is also based on a

sound public policy as in that event any delinquent Sarpanch, or Naib-Sarpanch can frustrate the

consideration of the resolution of no-confidence against him by tactfully delaying or avoiding

the service of the notice on him and thus frustrate the holding of the meeting. The legislation has



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also accordingly taken care to provide in unequivocal terms a provision to obviate such

contingencies by incorporating clause (e) to sub-section (2) of Section-24.



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XIII. Amiya Kumar Pani v. State of Orissa

1. State - Odisha


3. Bench – Single

4. Name of bench – M.M Das J

5. Case no- W.P(C) No. 16510 of 2007

6. Name of the case- Amiya Kumar Pani v. State of Orissa

7. Date of judgement- August 2, 2011

8. Appellant - Amiya Kumar Pani



11. Main law points involved- Whether the Order Dated 29.12.2007 of the Collector with

regard to removal of Sarpanch maintainable?

12. Grounds of challenge- Maintainability of the Order Dated 29.12.2007 of the Collector

with regard to removal of Sarpanch


• Jagannath Bag v. Collector, Balasore, 2004 Vol. 2 OLR 489;

• Choudhury Pradhan v. State of Orissa, 2009 ILR Cuttack 204;

• Subash Chandra Jenav. State of Orissa, 1995 (I) OLR 173

14. Area of dispute – Removal and no- confidence motion

15. Area of Dispute Category – Inappropriate conduct of sarpanch

16. Provision Of law Involved - Section 115(2) of the Orissa Gram Panchayat Act; Article

226 & 227 of the Constitution of India


Facts reveal that the Petitioner was the Sarpanch for about three years from 1993 to 1995.

Thereafter he was again elected as Sarpanch in the General Election held in the Grama

Panchayat in the year, 2007. Basing on a report of the Collector, the Government passed the

order of suspension, which held that Petitioner had manipulated the Grama Panchayat records

during his present tenure as Sarpanch & misappropriated Rs. 40,000 from the S.G.R.Y fund by

giving the amount as advance to one Ranjan Kumar Beura, who was the Executive Officer-cum-



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V.L.W of the Grama Panchayat and the State Government was satisfied that further continuance

of Shri Amiya Kumar Pani in the office of the Sarpanch will be detrimental to the interest of the

inhabitants of the said Badabalikani Grama Panchayat.


The Court relied on the judicial decisions which held that where allegations were made against

the Sarpanch with regard to commission of acts during his tenure as a Sarpanch for a previous

period, categorically laid down that in case of Sarpanch, who had committed a prejudicial act in

the past, it cannot be said that he wilfully omitted or refused to carry out or violated the

provisions of the Act or the Rules or orders made thereunder or abused the powers, rights &

privileges vested in him or acted in a manner prejudicial to the interest of Grama. Such act

committed by him in the past i.e during his earlier tenure as Sarpanch, cannot be a basis to

exercise jurisdiction u/s 115 of the Act & suspended him from the office of the Sarpanch.

Thereby the court opined that the order of removal cannot be sustained and was accordingly

quashed and lamented that no action shall be taken against the Petitioner pursuant to the report

of the Collector, Jagatsinghpur and the Collector if so desires, he may submit a fresh report in

relation to the alleged objectionable action committed by the Petitioner-Sarpanch after he was

elected as Sarpanch in the year, 2007.

The Writ Petition was accordingly disposed of.


Prejudicial acts committed by Sarpanch in the past i.e during his earlier tenure as Sarpanch,

cannot be a basis to exercise jurisdiction u/s 115 of the Act & suspended him from the office of

the Sarpanch.

20. Obiter Dicta-

In the case of Choudhury Pradhan v. State of Orissa, 2009 ILR Cuttack 204 the court looked

into the power of employer in suspending an employee & interpreted the provisions of Section

115(2) of the O.G.P Act, 1964 and held that a Sarpanch being an elected representative of the

people of the Grama, the authority concerned should assign reasons for taking a decision of

suspension of a Sarpanch & should not pass an order of suspension in a routine manner but with

caution after due circumspection and in this instant case, Court found out that no reason has

been assigned in the order of suspension and quashed the said order.



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XIV. Arun Kumar Sahoo v. State of Orissa & Others

1. State - Odisha



4. Name of bench – I.M Quddusi and N.Prusty, JJ

5. Case no- W.P (C) No. 5152 of 2003

6. Name of the case- Arun Kumar Sahoo v. State of Orissa & Others

7. Date of judgement- May 1, 2008

8. Appellant - Arun Kumar Sahoo

9. Respondent - State of Orissa & Others


11. Main law points involved- Whether Rule 212 and Rule 213 of the Gram Panchayat

Rules complied in the instant case?

12. Grounds of challenge- Complaince with the Rule 212 and Rule 213 of the Gram

Panchayat Rules


14. Area of dispute – Personnel System

15. Area of Dispute Category- Appointment related

16. Provision of Law Involved- Articles 226 and 227 of the Constitution of India; Rule 212

of the Gram Panchayat Rules ; Rule 213 of the Gram Panchayat Rules


Writ Petitions have been filed seeking relief for issuance of a writ of mandamus commanding

the Opposite Parties to accord approval on the recommendation made by the Selection

Committee selecting the Petitioner in each of the Writ Petitions as Secretary of Gram Panchayat.

Petitioner in W.P (C) No. 5151 of 2003 was selected by the duly constituted Selection

Committee as Secretary of Dimbo Gram Panchayat whereas the Petitioner in W.P (C) No. 5152

of 2003 was selected as such for the Naranpur Gram Panchayat both in the district of Keonjhar.


It was not disputed that the Selection Committee duly considered the candidatures and the

Petitioner in each of the Writ Petitions was selected for appointment as Secretary. Therefore, the

selection of the Petitioner in each of the Writ Petitions for the post of Secretary of the above



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mentioned Gram Panchayats is not disputed. Dispute has arisen thereafter meaning thereby that

instead of recommending the names of the selected candidates to the Gram Panchayats, the

Convenor of the Selection Committee issued appointment order directly to the Petitioners

intimating them that if they were willing to join, they should do so, failing which the order shall

stand cancelled. If appointment order was issued to the Petitioner in each of the Writ Petitions

without recommending the names to the concerned Gram Panchayat, the District Panchayat

Officer could have written to the Block Development Officer who was the Convenor of the

Selection Committee intimating him to follow the procedure. It appears from Annexure- 6 that

the concerned Gram Panchayat has accepted the joining of the Petitioners and intimated the

same to the District Panchayat Officer for approval. This was not a matter for not acting upon

the selection made by the Selection Committee duly constituted.

The cout disposed off the Writ Petitions with a direction that the concerned Block Development

Officer who was the Convenor of the Selection Committee shall forward the name of the

selected candidates, i.e, the Petitioners to the concerned Gram Panchayat.

19. Ratio Decidendi–If appointment order is issued , the District Panchayat Officer has to

write to the Block Development Officer of the Selection Committee intimating him to

follow the procedure

20. Obiter Dicta– ---



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XV. Bharati Pradhan v. State of Orissa and others

1. State - Odisha


3. Bench – Single

4. Name of bench – B.N Mahapatra, J

5. Case no- W.P (C) No. 14028 of 2012

6. Name of the case- Bharati Pradhan v. State of Orissa and others


8. Appellant - Bharati Pradhan



11. Main law points involved- Whether the power exercised under Section 115 of the

Orissa Gram Panchayat Act on the basis of the report of the Collector valid?

12. Grounds of challenge- Validity of the power exercised under Section 115 of the Orissa

Gram Panchayat Act on the basis of the report of the Collector


• Basudev Dandasena v.State of Orissa, (2010) 1 OLR 909;

• State of Orissa v. Md. Illiyas, 2006 (1) OLR (SC) 93

• Simanchal Bisoi v. State of Orissa, 2005 (2) OLR 460;

• Rohit Kumar Behera v. State of Orissa, 2012 (II) ILR-CUT-395;

• State of Uttar Pradesh v. Brahm Datt Sharma, AIR 1997 SC 943);

• A.V Venkateswaran Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani,

AIR 1961 SC 1506;

• U.P Rajya Krishi Utpadan Mandi Parishad v.Sanjiv Rajan, 1993 Supp (3) SCC 483

14. Area of Dispute Name – Removal and no- confidence motion

15. Area of Dispute Category- Inappropriate conduct of Surpunch

16. Provision of law involved- Sections 114 and 115 of the Orissa Gram Panchayat Act;

Articles 226 & 227 of the Constitution of India.



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This writ petition had been filed with a prayer to quash the order of suspension dated 24.07.2012

which was uploaded in the website and to issue a direction to the opposite parties to co-operate

with Allori Grama Panchayat for completion of the construction of Grama Panchayat building at

Allori on the land gifted by one Sri Ganeswar Biswal with the money allotted by DRDA vide

letter dated 08.08.2011. Further prayer of the petitioner was to allow the Panchayat Office to

function temporarily at Bhetia Recreation Centre till the new building is constructed at Allori.


The charges accompanied to the show cause notice and the order of suspension, prima facie

show that there is abuse of powers, rights and privileges vested on the Sarpanch and the

Sarpanch wilfully omits/refuses to carry out the order made under the provision of the Grama

Panchayat Act and Rules framed there under. Therefore, the State Government exercised power

under Section 115 of the G.P Act on the basis of the report of the Collector, Angul. It was held

that it was not a case of total absence of materials or non-application of mind. Therefore, it was

not a fit case where this Court shall exercise its discretionary power under Article 226 of the

Constitution to quash the order of suspension.

The court disposed of the writ petition giving liberty to the petitioner to file her reply to the

show cause notice issued under within two weeks from date of judgement. If such a reply was

filed by the petitioner, the same shall be considered and disposed of by the State Government

strictly in accordance with law. It was also open to the petitioner to move the concerned

authority in consonance with sub-Section (3) of Section 115 of the Act for variance of the order

of suspension.


It is not open to the Court to interfere in a case of suspension as it is within the exclusive domain

of the competent authority, who can always review its order of suspension being inherent power

conferred upon it.

20. Obiter Dicta-

The charges accompanied to the show cause notice and the order of suspension, prima facie

showed that there was abuse of powers, rights and privileges vested on the Sarpanch and the

Sarpanch wilfully omits/refuses to carry out the order made under the provision of the Grama

Panchayat Act and Rules framed there under. Therefore, the State Government had exercised



832

479

power under Section 115 of the G.P Act on the basis of the report of the Collector, Angul. It was

not a case of total absence of materials or non-application of mind. Therefore, it was not a fit

case where this Court shall exercise its discretionary power under Article 226 of the Constitution

to quash the order of suspension.



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480

XVI. Bijay Kumar Behera and others v. State of Orissa and others

1. State - Orissa



4. Name of bench – P.K MOHANTY AND A.S NAIDU, JJ

5. Case no- O.J.C No. 8451 of 1995

6. Name of the case- Bijay Kumar Behera and others v. State of Orissa and others


8. Appellant - Bijay Kumar Behera


10. Case type – Writ Application


a. Whether the order of the State Government deciding to change the headquarters of

Purushottampur Grama Panchayat from village Panisapada to village Purushottampur was a

bona fide order?

b. On deciding the above subject whether all relevant factors such as keeping the

paramount interest of the inhabitants of the Grama was looked into or was it merely a colourable

exercise of power not supported by any materials and thereby arbitrarily passed by the State

Government on extraneous grounds.

12. Grounds of challenge- Leglity of the order of the State Government deciding to change the

headquarters of Purushottampur Grama Panchayat from village Panisapada to village

Purushottampur



15. Area of Dispute category- Dispute among panchayat and between panchayat

16. Provisions of law involved -

Section 4 of the Orissa Grama Panchayat Act ; Section 3 read with Section 149 of

the Orissa Panchayat Act, 1964 Article 226 and Article 227 of the Constitution Of India

17. Gist of case-

The petitioners had filed the present writ application, inter alia, challenging the Notification

dated 5-9-1995 issued by the Government of Orissa. Panchayat Raj (G.P). Department directing



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that the office and headquarters of the Gram Sasan of Grama Purushottampur in Basta Block of

Balasore district constituted under the Notification of the Government in Panchayati Raj (G.P.)

Department No. 6881 dated the 25th March 1992 shall be situated in village Purushottampur

within the limits of the said Grama.


It was held that the decision of the Government vide Annexure-9 to once again shift the

headquarters of Purushottampur G.P from village Panisapada to village Purushottampur was

based on irrelevant and extraneous consideration and the same was not only arbitrary but also

contrary to the public interest and the said order was nothing, but colourable exercise of power,

not structured by any rational consideration. The writ application allowed.


Discretionary power has to be exercised on relevant considerations germane to the issue

and cannot be permitted to be exercised on extraneous considerations.

20. Obiter Dicta–

The power to constitute a Grama and to assign a name to such Grama is derived from Section 3

of the Orissa Panchayat Act. No guideline has been fixed in Section 3 for the purpose of

assigning any name to a group of contiguous villages and therefore, it is the discretion of the

State Government to constitute a group of contiguous villages at a Grama and to assign such

Grama a name which shall be one of the villages comprised within the Grama. Sec. 4(3)

stipulates that the headquarters shall be situated within the limits of the Grama, and unless

otherwise ordered, in the village bearing the name of the Grama, thus, the discretion vests upon

the Govt. to locate the headquarters. But that discretionary power has to be exercised on relevant

considerations german to the issue and cannot be permitted to be exercised on extraneous

considerations. Though the Court is restrained to interfere with the discretion exercised by the

State Government so long as the said discretion is exercised bona fide, but it would be fully

entitled to interfere when it comes to the conclusion that the discretion has been exercised

arbitrarily basing on extraneous considerations or has been exercised ignoring the relevant

materials. Absence of any mode or guideline does not vest unfattered power upon the

Government. On scrutiny of the documents available, if it found that the Government while

exercising the discretionary power has decided the matter without application of mind to

relevant materials and/or has taken into consideration matters which are extraneous and not



835

482

german to the object, the writ Court in exercise of powers under Article 226 of the Constitution

of India can interfere with such decision.



836

483

XVII. Fakirmohan Das and Others v. State of Orissa & Others

1. State - Odisha


3. Bench – Division Bench( Two Judges Bench)

4. Name of bench – P.K Tripathy and A.K Parichha ,JJ

5. Case no- W.P (C) Nos. 12191, 12062, 12071, 12259, 12438, 12439, 12440, 12441,

12545, 12551, 12587, 12598, 12614, 12649, 12659, 12674, 12687, 12688, 12852, 12868, 12884,

12935, 12977, 12987, 12989, 12998, 13099, 13103, 13104, 13219, 13226, 13246, 13271, 13273,

13278, 13292, 13299, 13302, 13341, 13342, 13381, 13393, 13426, 13441, 13489, 13622, 13657,

13658, 13661, 13800, 13801, 13830, 13842, 13843, 13844, 13845, 13876, 13933, 14022, 14484,

14614, 14719, 14788, 12514, 14006, 14267, 13424, 14042 Of 2004 & W.P (C) Nos. 61, 126,

175, 282, 327, 513, 5877, 14747 of 2005

6. Name of the case- Fakirmohan Das and Others v. State of Orissa & Others


8. Appellant - Fakirmohan Das and Others

9. Respondent - State of Orissa & Others



Whether the amendment to Sections 122 and 123 of Panchayat Raj Act ultra vires?


Legallity of the amendment to Sections 122 and 123 of Odhisa Panchayat Raj Act 1944


• J.S Joshi v. Ajit Mills Ltd., (1977) 4 SCC 98 : AIR 1977 S.C 2279;

• Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591 : AIR 1980 S.C 1789;

• Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109 : AIR

1998 SC. 431;

• Paluru Ramkrishnaian v. Union of India, (1989) 2 SCC 541 : AIR 1990 S.C 166;

• Delhi Transport Corporation v. D.T.C Mazdoor Congress, 1991 Supp (1) SCC 600 :

AIR 1991 S.C 101;



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• State of U.P v. Pradhan Sangh Kshettra Samiti, 1995 Supp (2) SCC 305 : AIR 1995 S.C

1512;

• State of Andhra Pradesh v. McDowell and Co., (1996) 3 SCC 709 : AIR 1996 S.C 1627,

• J.P Ravidas v. Navvuvak Harijan Uthapan Multi Unit Industrial Co-op. Society

Ltd., (1996) 9 SCC 300 : AIR 1996 S.C 2151;

• Union of India v. Elphinstone Spinningand Weaving Co. Ltd., (2001) 4 SCC 139 : AIR

2001 S.C 724;

• SaurabhChaudri 422 v. Union of India, AIR 2004 S.C 361;

• Satchidananda Mishra v. State of Orissa, AIR 2004 S.C 4639 and

• State of Andhra Pradesh v. T. Survachandra Rao, (2005) 6 SCC 149 : AIR 2005 S.C

3110.

14. Area of Dispute – Power

15. Area of Dispute Category – Dispute On Power of State

16. Provisions of law involved- Sections 122 and 123 of the Orissa Grama Panchayat Act,

1964 ; Article 243 G of the Constitution Of India


The Secretaries and also the Sarpanches of some of the Grama Panchayats have questioned the

authority of the Government in making amendment of Sections 122 and 123 of the Act contrary

to the spirit of self governance proclaimed by the Constitution in Articles 243 G by curtailing

independence of the Grama Panchayats and to get it controlled through deputed staffs i.e Village

Level Workers and Village Agricultural Workers (in short, “V.L.Ws and V.A.Ws”)


It is trite law that the Rule framed in any statute should be in conformity with the Act and not in

deviation, derogation and contradiction of the provision in the Act. Therefore, the Rule, which

was in existence conferring different rights and duties to the Secretaries of the Grama

Panchayats is automatically taken away by amendment of Sections 122 and 123. However, when

Sub-Section (3) of Section 122 confuses the issue and makes the provision of Sections

122 and 123 inoperative in its amended form and hampers the right of the Panchayats in the

matter of self-Government, the orders under Annexures 1 and 3 cannot be accepted as legal,

valid and in conformity with Article 243(g) of the Constitution.Writ Petitions with the

conclusion that the provisions in Section 122(3) of the Act was ultra vires of the



838

485

Constitution and in view of that the amended provision in Sections 122 and 123 of the Act

relating to appointment and functioning of the Executive Officers cannot be done

validly and legally. Accordingly, all the Writ Petitions were allowed in part.


It is a trite law that the Rule framed in any statute should be in conformity with the Act and not

in deviation, derogation and contradiction of the provision in the Act.

20. Obiter Dicta-

The argument of the Petitioners, that in the event of conflict between the Rule and the Act, the

Rule shall prevail and because the amended provision of Section 122 is in conflict with Rule

212, the amended provision of the Act will be of no avail was held by the court that it had no

legal force in asmuch as it is the trite law that in the event of any conflict between the

Act and the Rules made thereunder, the former will prevail. The State Government had the

authority to make provision for functioning of the Grama Panchayats and prescribing the

categories of servants to function under it. Therefore, creating the post of Executive Officer as

per amended provisions in Sub-Sections 1 and 2 of Section 122 are found to be within the

jurisdiction and competency of the State Legislature. Therefore, this Court in exercise of

jurisdiction under Article 226 of the Constitution of India had no jurisdiction to interfere with

that enacted provision to the above extent. The Secretaries of the Grama Panchayats or even the

Sarpanches of Panchayats in the State cannot question the authority of the State and the State

Legislature in that respect when the aforesaid act and wisdom of the State does not run contrary

to the mandate of the Constitution of India and does not interfere with the principle of self

government.



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XVIII. Gangadhar Mohapatra v. State of Orissa

1. State - Orissa


3. Bench –- 2 judge bench (Division Bench)

4. Name of bench - P.C Misra and Smt. A.K Padhi, JJ.

5. Case no- O.J.C Nos. 6833, 6912, 6955, 6989, 7179, 7207, 7210, 7219, 7231, 7259, 7278,

7340, 7341 and 7390 of 1994,

6. Name of the case- Gangadhar Mohapatra v. State of Orissa


8. Appellant - Gangadhar Mohapatra


10. Case type - Writ petition


a. Whether the Delimitation Rules can be said to be a law made by the State

Legislature and whether the said Rules suffer from excessive delegation.

b. Whether the Delimitation Rules are immune from challenge in these writ petitions because of

the bar provided in Article 243-0 of the Constitution.


Legality of the Delimitation Rules on grounds of excessive delegation and its immunity from

challenge in these writ petitions because of the bar provided in Article 243-0 of the Constitution


• V. Ramackandra Reddy v. State of Andhra Pradesh, represented by the Secretary,

Panchayat Raj, Hyderabad A.I.R 1965 A.P 40 ;

• Mohinder Singh Gill v. the Chief Election Commissioners New Delhi A.I.R 1978 S.C

851;

• Amaravila Krishnan Nair v. The Election Commissioner of India, New Delhi A.I.R 1972

Kerala 5;

• Bhupendra Kumar Bose v. State I.L.R 1959 Cuttack 180;

• Hamdard Dawakhana v. The Union of India A.I.R 1960 S.C 554;

• Devi Das Gopal Krishnan etc. v. State of Punjab A.I.R 1967 S.C 1895;



840

487


15. Area of Dispute Category- Delimitation

16. Provision of Law- Articles 243-C and 243-K, Article 243-M, Article 243-O(a) of the

Constitution; Orissa Zilla Parishad Election Rules, 1994 and of the Orissa Zilla Parishad

(Delimitation and Reservation of Constituencies) Rules, 1994; Sections 14, 15,16 & 19 of the

Representation of People Act, 1950


Identical applications were filed where the main challenge was to the validity of the Orissa Zilla

Parishad Election Rules, 1994 and of the Orissa Zilla Parishad (Delimitation and Reservation of

Constituencies) Rules, 1994. In some of the writ applications prayer had been made to quash the

notifications of the Government issued in purported exercise of powers under the Orissa Zilla

Parishad Act, 1991 and the Election Rules delimiting the constituencies and calling upon the

Parishad Constituencies to elect members to the Zilla Parishad fixing date of poll as 20-12-1994.


Honourable court clarified the fact the delimitation Rules and the Election Rules were based on

no declared legislative policy and also suffered from vice of excessive delegation. Those Rules

were also deficient to ensure a fair election as the Constitution contemplates of a free and fair

election and requites the State Legislature to make law to achieve the said object. The State

Legislature was asked to take steps in that behalf so as to make the law as required under Article

243-C and Article 243-K of the Constitution by taking care all the matters specifically dealt

with in the said judgement.

19. Ratio Decidendi -

Delimitation Rules and the Election Rules are based on no declared legislative policy and also

suffer from vice of excessive delegation.

20. Obiter Dicta-

Article 243-0 occurring in Part-IX of the Constitution cannot be made applicable to the

scheduled areas referred to in clause (1) and to the tribal areas referred to in clause (2) of Article

244 because of the provisions in Article 243-M. Article 244 of the Constitution provides that the

provisions of the Fifth Schedule shall apply to the administrations and control of the scheduled

areas and scheduled tribes in any State, other than the State of Assam, Meghalaya,

Tripura and Mizoram. The Fifth Schedule in Part-B contains a provision that notwithstanding



841

488

anything in this Constitution, the Governor may by public notification direct that any particular

Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any

part thereof in the State subject to such exceptions and modifications as he may specify in the

notification. It also provides that notwithstanding anything in the Constitution the Governor may

by public notification direct that any particular Act of Parliament or of the legislature of the State

shall not apply to a scheduled area or any part thereof in the State or shall apply to a scheduled

area or any part thereof in the State subject to such exceptions and modifications as he may

specify in the notification and any such direction may be given so as to have retrospective effect.



842

489

XIX. Gour Chandra Pradhan v. State of Orissa and other

1. State - Orissa



4. Name of bench – R.K Patra and Pradipta Ray, JJ

5. Case no- O.J.C No. 18371 of 1997

6. Name of the case- Gour Chandra Pradhan v. State of Orissa and other

7. Date of judgement- May 5, 1998

8. Appellant - Gour Chandra Pradhan




Whether in view of the provisions contained in sub-section (2) of Section 36 of the Orissa Gram

Panchayat Act the opposite parties 5 to 10 having not taken their oath or affirmation as required

thereunder within the prescribed time have ceased to hold office?

12. Grounds of challenge- Effect of not taking oath or affirmation within prescribed time

limit under sub-section (2) of Section 36 of the Orissa Gram Panchayat Act.



15. Area of dispute category- Cancellation

16. Provision of law-

Section 6(2) of the Orissa Gram Panchayat Act; Section (2) of Section 36 Orissa Gram

Panchayat Act ; Rule 48(1)(i) of the Orissa Zilla Parishad Election Rules, 1994; Article 226 of

the Constitution


The case of the petitioner is that results of election to the Ganjam Zilla Parishad were duly

published on 29-1-1997 in the Official Gazette and its elected members were deemed to have

held office with effect from that date. Inspite of holding four meetings the opposite parties 5 to

10 did not take their oath or affirmation as required thereunder within the prescribed time have



843

490

ceased to hold office. The Collector, Ganjam who is the Chief Executive Officer of the Parishad

illegally wanted to-administer oath. Some members raised the objection thereby the attempt of

the Collector to administer oath to them was foiled. In the meeting, it was decided that the

dispute should be referred to the State Government for its decision but till now, no decision has

been communicated from the Government level. The State Election Commission. Orissa,

however, in his letter dated 19-8-1997 (Annexure-3) communicated its views stating, inter alia

that as per the executive instructions, the Respective Collectors of the districts were to complete

administering oath of office to the elected members of the Zilla Parishad and the concerned

Collector having not done so, his lapse “should not negate the people's mandate in favour of the

elected members” particularly when the Collector allowed them to attend the meetings and the

six elected members could be administered Oath of office.


On careful consideration of the resolutions and the relevant provisions of law and for the reasons

stated above, it was opined that the first, second and third meetings of the Parishad respectively

took place on 15-2-1997, 25-2-1997 and 1-5-1997and opposite parties 5 to 10 did not take their

oath in any of those meetings. In view of sub-section (2) of Section 36 of the Orissa Zilla

Parishad Act, 1991 Act and the fact that opposite parties 5 to 10 have failed to take oath or

affirmation in any of the first three meetings of the Parishad (15-2-1997, 26-2-1997 and 1-5-

1997), each of them has ceased to hold the office of member of the Parishad. As a consequence,

all the six seats fell vacant which are to be filled up according to law.


The provision of sub-section (2) of Section 36 is mandatory and does not admit of any

exception.


The State Election Commission ought to have examined if the opposite parties 5 to 10 failed to

take oath or affirmation in any of the first three meetings of the Parishad. Instead of doing so, it

seems to have found fault with the District Collector in not administering oath of office to them.

Its view that since they were all elected representatives of the peopleand when the Collector

allowed them to attend the meetings, they could be administered oath of office at any time even

if they had failed to take the oath in any of the first three meetings is not based on any provision

of law.



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XX. Durga Bai Sahu v. State of Odisha and others

1. State - Odisha


3. Bench – Division Bench ( 2 judge bench)

4. Name of bench – V. Gopala Gowda C.J and B.N Mahapatara J.

5. Case no- W.A No. 569 of 2011

6. Name of the case- Durga Bai Sahu v. State of Odisha and others

7. Date of judgement- October 19, 2012

8. Appellant - Durga Bai Sahu

9. Respondent - State of Odisha and others



Whether Clause (a) of Sub-Section (6) of Section 10 of the Grama Panchayat Act has been

violated?


Violation Clause (a) of Sub-Section (6) of Section 10 of the Grama Panchayat Act

13. Reference taken from the case- Shyam Sundar v. Ram Kumar, AIR 2001 SC 2472, Sri

Vijayalakshmi Rice Mills, New Contractors Co. v. State of A.P, AIR 1976 SC 1471 ;Boddula

Krishnaiah v. State Election Commissioner, A.P, (1996) 3 SCC 416; Lachmeshwar Prasad

Shukul v.Keshwar Lal Choudhuri (AIR 1941 FC 5); In Garikapati Veeraya v. N. Subbiah

Choudhry, 1957 SCR 488: (AIR 1957 SC 540); Smt. Dayawati v. Inderjit (1966) 3 SCR 275:

(AIR 1966 SC 1423); Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602:

(1994 AIR SCW 3699: AIR 1994 SC 2623: 1995 Cri LJ 517); K.S Paripoornan v. State of

Kerala (1994) 5 SCC 593


15. Area of Dispute Category – Eligibility of candidates

16. Provision of Law - Section 10(4) and(6) of the Odisha Grama Panchayat Act


The writ appeal was filed challenging the correctness of the order dated 08.11.2011 passed by

learned Single Judge in W.P(C) No. 27706 of 2011 with a prayer to allow W.P(C) No. 27706 of

2011 by setting aside the order of the learned Single Judge. In the writ petition, the petitioner



845

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had prayed for quashing of notification dated 16.06.2011 issued under Section 8 of

the Orissa Grama Panchayat Act along with revised copy of the list of reserved constituencies in

the ensuing Panchayat Election 2012 and to prepare a fresh list in consonance with amended

provisions of Section 10(4) and(6) of the Odisha Grama Panchayat Act.


Where a repeal of provisions of an enactment was followed by fresh legislation by an amending

Act, such legislation was prospective in operation and does not effect substantive or vested

rights of the parties unless made retrospective either expressly or by necessary intendment. Court

viewed that there was a presumption against the retrospective operation of a statute and further a

statute was not to be construed to have a greater retrospective operation than its language renders

necessary, but an amending Act which affects the procedure is presumed to be retrospective,

unless amending Act provides otherwise. The new substituted S.15 brought in the parent Act by

Amendment Act, 1995 does ont either expressly or by necessary implication is retrospective in

operation which may effect the right of the parties on the date of adjudication of suit and the

same was required to be taken into consideration by the appellate Court. The court held that is no

infirmity or illegality in the order passed by the learned Single Judge and is perfectly

legal and valid.The writ appeal was dismissed.


Where a repeal of provisions of an enactment is followed by fresh legislation by an amending

Act such legislation is prospective in operation and does not affect substantive or vested rights of

the parties unless made retrospective either expressly or by necessary intendment.

20. Obiter Dicta-

New substituted S.15 brought in the parent Act by Amendment Act, 1995 did not find it either

expressly or by necessary implication retrospective in operation which may have affected the

right of the parties on the date of adjudication of suit and the same is required to be taken into

consideration by the appellate Court. In Shantidevi (Smt) v. Hukumchand (1996) 5 SCC 768:

(1996 AIR SCW 3680: AIR 1996 SC 3525) the Court had interpreted the substituted S.15 with

which court was concerned and held that on a plain reading of S.15 it was clear that it had been

introduced prospectively and there was no question of such section affecting in any manner the

Judgment and decree passed in the Suit for pre emption affirmed by the High Court in the

second appeal. The present appeals are unaffected by change in law so far it related to



846

493

determination of the substantive rights of the parties and the same are required to be decided in

light of law of pre-emption as it existed on the date of passing of the decree.

In relation pending proceedings, the approach of the Courts in England was that the same were

unaffected by the changes in the law so far as they relate to the determination of the substantive

rights and in the absence of a clear indication of a contrary intention in an amending enactment,

the substantive rights of the parties to an action fall to be determined by the law as it existed

when the fiction was commenced and this is so whether the law is change before the hearing of

the case at the first instance or while an appeal was pending.



847

494

XXI. Brundabati Pradhan v. State of Odisha & Others

1. State - Orissa


3. Bench – Single

4. Name of bench – C.R Dash, J

5. Case no- W.P (C) No. 15805 of 2014

6. Name of the case- Brundabati Pradhan v. State of Odisha & Others


8. Appellant - Brundabati Pradhan

9. Respondent - State of Odisha & Others



Whether Section 24(2)(c) of the Orissa Grama Panchayat Act has been violated?


It was alleged by the petitioner that the aforesaid notice dated 12.08.2014 was issued by the

concerned Post Office on 16.08.2014 and it was received by the petitioner on 20.08.2014 It was,

therefore, urged that there being no clear 15 days notice as contemplated under Section 24(2)(c)

of the Orissa Grama Panchayat Act, notice was to be quashed, the meeting being a nullity.


• Smt. Heeramani Munda v. The Collector, Keonjhar, 99 (2005) CLT 180 ;

• Nilambar Majhi v. Secretary to Govt. of Orissa, Panchayati RajDeptt., 2005 (II) OLR

659;

• Sarat Padhi v. State of Orissa, 65 (1988) C.L.T 122/A.I.R 1988 Orissa 116

14. Area of Dispute – Removal and non-confidence motion

15. Area of Dispute Category- Suspension Of Surpunch

16. Provision Of law Involved –

Section 24(2)(c) of the Orissa Grama Panchayat Act; Articles 226 & 227 of the Constitution of

India




848

495

The petitioner, who is the elected Sarpanch of Tinkbir Grama Panchayat in the district of

Deogarh, has challenged, in this writ application, the notice dated 12.08.2014 issued by the Sub-

Collector, Deogarh-opposite party No. 3 calling upon the petitioner to attend the meeting of “No

Confidence Motion” to be held on 28.08.2014.


The court held that the date of issue of notice was to be understood as date of issue from the

office of the Sub-Collector. If there was some delay in dispatch from the office of the Sub-

Collector, the same shall not invalidate the meeting of no-confidence unless prejudice was writ

large or shown to have occasioned so far as the petitioner was concerned. In the present case,

however, there was no pleading to the effect that any prejudice has been caused to the petitioner

by delayed receipt of the notice. There was clear 15 days in between the date of the meeting

and the date of issue of the notice. The petitioner had also participated in the meeting for

recording confidence. In view of such fact, the contention raised by learned counsel for the

petitioner must fail.

In the result, the writ application was dismissed. The result of “No Confidence Motion” kept in

the sealed cover, be published forthwith and consequent action be taken in accordance with law.


Whether the notice reaches the addressee is not of any consequence, unless of course, any

prejudice on the failure of the service of the notice is writ large or established by bringing

relevant facts on the record.

20. Obiter Dicta-

In the case of Sarat Padhi the court had taken into consideration the entire scheme of the notice

contemplated under Section 24(2)(c) of the Act and had held thus:-

“The Scheme of the notice contemplated under Section 24(2)(c) may be divided into three parts:-

(i) requirement of giving the notice, (ii) fixing the margin of time between the date of the

notice and the date of the meeting and (iii) service of notice on the members. I am of the view,

which is also conceded by the learned Advocate General that the first two parts, namely, the

date of issue of the notice and the margin of clear 15 days between the date of the notice and the

date of meeting are mandatory. In other words, if there is any breach of these two conditions,

then the meeting will be invalid without any question of prejudice. But the third condition, i.e,

the mode of service or the failure by any member to receive the notice at all or allowing him less



849

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than 15 clear days before the date of the meeting, will not render the meeting invalid. This

requirement is only directory. This is also based on a sound public policy as in that event any

delinquent Sarpanch, or Naib-Sarpanch can frustrate the consideration of the resolution of no-

confidence against him by tactfully delaying or avoiding the service of the notice on

him and thus frustrate the holding of the meeting. The legislation has also accordingly taken

care to provide in unequivocal terms a provision to obviate such contingencies by incorporating

clause (e) to sub-section (2) of Section- 24.”



850

497

STATE OF PANJAB AND HARYANA

I. Amandeep Kaur v. State of Haryana and Anr.

1. State - Haryana

2. Court – Punjab and Haryana High Court at Chandigarh


4. Name of the Bench - Satish Kumar Mittal and Mahavir Singh Chauhan, JJ.

5. Case Number – L.P.A. No. 1431 of 2013 (O&M)

6. Name of the case - Amandeep Kaur v State of Haryana and Anr.


8. Name of Appellant – Amandeep Kaur

9. Name of Respondent – State of Haryana and Anr

10. Case Type – Election Petition

11. Main Law Points Involved – Whether the Court erred in dismissing the petition challenging

Petitioner's suspension?

12. Grounds of Challenge – The legality of the decision of the in dismissing the petition

challenging Petitioner's suspension

13. Reference taken from the cases – No


15. Area of dispute category – Cancellation

16. Provisions of Laws Involved- Section 51(2), Haryana Panchayati Raj Act, 1994



851

498

17. Gist of the Case-

Letter Patent Appeal was filed against the order passed by the learned Single Judge, whereby the

writ petition filed by the appellant challenging her suspension as Sarpanch of Gram Panchayat,

Village Diwana (Haryana) had been dismissed. The appellant was suspended on 13.7.2012 and

as per the requirement of proviso to sub-section (2) of Section 51 of the Haryana Panchayati Raj

Act, 1994, the suspension period of a Panch or a Sarpanch cannot exceed one year from the date

of handing over the charge in pursuance of the suspension order. The order of suspension of the

appellant was not revoked by the authorities, because the appellant did not hand over charge to

the authorities. In the impugned order, it was mentioned that the regular inquiry, ordered to be

conducted against the appellant on the allegation of misappropriation of huge amount and during

the pendency of which the appellant has been ordered to be suspended, had been concluded.

18. Operating Portion of the Judgment –

The Court disposed of the present appeal with a direction to the Deputy Commissioner-

Respondent No. 2, to take the final decision in the matter under the provisions of the Act, within

a period of two months from the date of receipt of the certified copy of the present order. The

court did not find it necessary to interfere with the impugned order or revoke the suspension

order of the appellant.


As per the requirement of proviso to sub-section (2) of Section 51 of the Haryana Panchayati

Raj Act, 1994 (hereinafter referred to as`the Act'), the suspension period of a Panch or a

Sarpanch cannot exceed one year from the date of handing over the charge in pursuance of the

suspension order.




852

499

II. Aas Mohammad v State of Haryana and others

1. State - Haryana

2. Court - Punjab and Haryana High Court at Chandigarh


4. Name of the Bench - Rakesh Kumar Jain, J

5. Case Number – CWP No. 14656 of 2013

6. Name of the case - Aas Mohammad v State of Haryana and others


8. Name of Appellant – Aas Mohammad

9. Name of Respondent – State of Haryana and others

10. Case Type – Writ Petition (civil)

11. Main Law Points Involved – Whether Respondent no. 2 had rightfully exonerated

Respondent no. 5?

12. Grounds of Challenge – Whether Respondent no. 2 had rightfully exonerated Respondent

no. 5?



15. Area of dispute category- Eligibility of candidates

16. Provisions of Laws Involved- Haryana Panchayati Raj Act, 1994 - 51(1), Haryana

Panchayati Raj Act, 1994 - 51(5)



853

500


The Petitioner challenged the order passed by respondent No. 2 by which respondent No. 5 had

been exonerated, the contention being that an enquiry was conducted against respondent No. 5

for some alleged misconduct. Respondent No. 5 was put under suspension by the Deputy

Commissioner, Mewat but her appeal was accepted by the Financial Commissioner on observing

that respondent No. 5 was not served with the show cause notice and was not afforded any

opportunity to explain the position with regard to the allegations made against her while passing

the impugned suspension order. Thus, while allowing the appeal, direction was issued to the

Deputy Commissioner to hold regular enquiry into the allegations.

18. Operating Portion of the Judgement - The petition was dismissed.


The petition was found not maintainable as there the allegation of embezzlement against

Respondent No. 5 was not proved and also because the order passed by respondent No. 2 under

Section 51(1) of the Haryana Panchayati Raj Act, 1994 is appealable under Section 51(5) of the

Act.




854

501

III. Baljinder Kaur v Director, Panchayats, Punjab and Ors

1. State - Punjab



4. Name of the Bench - Paramjeet Singh, J.


6. Name of the case - Baljinder Kaur v Director, Panchayats, Punjab and Ors

7. Date of Judgment - 30.01.2015

8. Name of Appellant – Baljinder Kaur

9. Name of Respondent – Director, Panchayats, Punjab and Ors


11. Main Law Points Involved - Whether the appointment of the Respondent no.4 (Avtar

Singh) as administrator was in accordance with the provision of the Punjab Panchayati Raj Act

1994 ?

12. Grounds of Challenge – The legality of the appointment of the Respondent no.4 (Avtar

Singh) as administrator



15. Area of dispute category – Eligibility of candidates.

16. Provisions of Laws Involved – Constitution of India - Article 226, Constitution Of India -

Article 227; Punjab Panchayati Raj Act 1994 - Section 200(1), Punjab Panchayati Raj Act 1994 -

Section 24(3)



855

502


A writ petition was filed under Articles 226/227 of the Constitution of India for quashing the

order passed by respondent No. 1-Director, Panchayats, Punjab whereby respondent No. 4

(Avtar Singh), Panchayat Officer had been appointed as administrator under Section 200(1) of

the Punjab Panchayati Raj Act, 1994.


Respondent No. 4 filed an affidavit mentioning that his tenure as administrator had expired and

that he had not withdrawn any grant amount from the bank account or spent in the capacity of

Administrator. In view of the above, prayer of the petitioner qua appointment of administrator

became infructuous. During casting of votes, since four members including Sarpanch were on

one side and four members on the other side, the Sarpanch had a right of casting vote and the

same was used by the Sarpanch but it was not taken into consideration by the authorities. The

Court held that instead of passing an order on merits it was appropriate to issue directions to the

Director, Panchayats, Punjab to take prompt action and pass appropriate order on the

application/representation in accordance with law within two months from the date of receipt of

certified copy of the order of the court.


According to Section 24(3) of the Punjab Panchayati Raj Act, 1994, the Sarpanch has a right of

casting vote in the event of equality of votes in addition to casting his vote before declaring the

number of votes for and against an agenda. The casting vote of Sarpanch was not taken into

consideration by the authorities, thereby violating the provisions of Punjab Panchayati Raj Act,

1994.

20. Obiter Dicta-

The authorities should not unnecessarily interfere in the functioning of the Panchayat, when it is

proceeding in accordance with law.



856

503

IV. Budh Singh v. State of Haryana and Others

1. State - Haryana




5. Case Number – L.P.A. No. 1465 of 2013 (O&M)

6. Name of the case - Budh Singh v. State of Haryana and Others


8. Name of Appellant – Budh Singh

9. Name of Respondent – State of Haryana and Others

10. Case Type – Appeal

11. Main Law Points Involved - Whether an order passed for the removal of Respondent No. 4

from the post of Sarpanch was valid in law?

12. Grounds of Challenge – Legality of an order passed for the removal of Respondent No. 4

from the post of Sarpanch



15. Area of dispute category – Eligibility of candidates

16. Provisions of Laws Involved - Haryana Panchayati Raj Act, 1994 - Section 175 (1) (n),

Haryana Panchayati Raj Act, 1994 - Section 175(1)(n), Haryana Panchayati Raj Act, 1994 -

Section 177.

17. Gist of the Case-The instant Letters Patent Appeal was filed against the order passed by the

learned Single Judge, whereby the writ petition filed by Indraj (respondent No. 4), an elected



857

504

Sarpanch of Gram Panchayat, District Mohindergarh, had been allowed and the order passed by

the Deputy Commissioner, Mohindergarh (respondent No. 2), removing him from the post of

Sarpanch, as well as the order passed by the Appellate Authority upholding the aforesaid order,

had been set aside. On a complaint made by the appellant to respondent No. 2, proceedings

under Section 177 of the Haryana Panchayati Raj Act, 1994 to declare respondent No. 4 as

disqualified to be elected as Sarpanch of the Gram Panchayat were initiated. It was alleged that

one year prior to his election respondent No. 4 was in illegal possession of the Gram Panchayat

land, therefore, in view of Section 175(1) (n) of the Act, he was not qualified to contest the

elections. On the said complaint, an enquiry was held and while relying upon the report of the

Enquiry Officer (respondent No. 3), the order ordering removal of respondent No. 4 from the

post of Sarpanch was passed by respondent No. 2. Both these orders were challenged by

respondent No. 4 by filing the writ petition, which had been allowed by the learned Single

Judge.


The court observed that the learned Single Judge, after considering the report submitted by

respondent No. 3 and other material, came to the conclusion that instead of respondent No. 4, his

brothers were in illegal possession of the Gram Panchayat land, and possession of his brothers

cannot be taken to be physical possession of respondent No. 4 making him disqualified to

contest the elections under Section 175 (1) (n) of the Act. The said finding of fact was recorded

after appreciating the evidence as well as report of respondent No. 3. Also, it is respondent No. 4

himself, who had initiated proceedings for eviction against his brothers. By considering these

factors, the learned Single Judge has set aside the order of removal of respondent No. 4 from the

post of Sarpanch. Even, before parting with the order, the learned Single Judge held that the

father and brothers of respondent No. 4 were found in illegal possession of the Gram Panchayat

land and in this regard, the order of eviction was passed, which was upheld in appeal. Thus the

court issued directions that the said persons be evicted from the Gram Panchayat land even with

the police help and thus declined to interfere in the impugned order and dismissed the appeal.




858

505

Instead of respondent No. 4, his brothers were in illegal possession of the Gram Panchayat land,

and possession of his brothers cannot be taken to be physical possession of respondent No. 4

making him disqualified to contest the elections under Section 175 (1) (n) of the Haryana

Panchayati Raj Act, 1994.




859

506

V. Deepak Mangla v. Nanakchand and Ors

1. State - Haryana



4. Name of the Bench - Rakesh Kumar Jain, J.

5. Case Number – Civil Revision Nos. 523 and 646 of 2013

6. Name of the case - Deepak Mangla v. Nanakchand and Ors


8. Name of Appellant – Deepak Mangla

9. Name of Respondent – Nanakchand and Ors

10. Case Type – Civil Appeal

11. Main Law Points Involved - Whether the order passed by the election tribunal relating to

the provision of Limitation Act, 1963 for condonation of delay in filing a suit, to challenge the

elections of the petitioner, was valid?

12. Grounds of challenge – Validity of the order passed by the election tribunal relating to the

provision of Limitation Act, 1963 for condonation of delay in filing a suit, to challenge the

elections of the petitioner

13. Reference taken from the cases –

• Rashpal Singh Alias Rachpal Singh and Ors. vs. Jasvir Singh and Ors. 2010(2) R.C.R.

(Civil) 408

• Parkasho vs. Bholi Devi Civil Revision No. 6086 2011 (1)

• Danda Rajeshwari vs. Bodavula Hanumayamma and others JT 1996 (7), 212 1996

SCALE (5)871



860

507


15. Area of Dispute category – Eligibility of the Candidates

16. Provisions of Laws Involved - Code of Civil Procedure, 1908 (CPC) - Order VII Rule 11;

Code of Civil Procedure, 1908 (CPC) - Section 114; Haryana Panchayati Raj Act, 1994 - Section

176.


The petitioner was elected as Sarpanch of village Hassanpur, Tehsil Hodal, District Palwal

(Haryana). His election was challenged by the respondents through a writ petition. The

Respondent withdrew the writ petition and filed an election petition along with an application for

condonation of delay. The said application was allowed on the ground that since they were

pursuing their remedy by way of writ petition and after the receipt of the copy of the orders they

had filed the election petition immediately, therefore the delay be condoned. Thereafter, an

application under Order 7 Rule 11 read with Section 114 of the Code of Civil Procedure, 1908

was filed for rejection of the election petition but the said application was dismissed by the

Election Tribunal. Aggrieved against both the aforesaid orders the present revision petitions

were filed. Counsel for the petitioner argued that as per Section 176 of the Haryana Panchayati

Raj Act, 1994 the election could be challenged within 30 days of the declaration of result,

whereas in this case, the result was declared on 17.06.2012 and the election petition was filed on

16.08.2012, which was beyond the period of 30 days. It was also submitted that the provisions of

the Limitation Act, 1963 are --- in the election petition to condone the delay as the election

petition is like an original suit.


Both the revision petitions were allowed and the impugned orders were set aside.



861

508

19. Ratio Deciendi-

Election petitions are just like original suits and no applications for condonation of delay could

be filed for condonation of delay in filing of the suit, the Election Tribunal had no jurisdiction to

condone the delay despite the order passed by the Court.




862

509

VI. Dindar v. Yamin and Anr.

1. State - Haryana



4. Name of the Bench - Paramjit Singh Patwalia, J.

5. Case Number – C.R. No. 4794 of 2012

6. Name of the case – Dindar v. Yamin and Anr.


8. Name of Appellant – Dindar

9. Name of Respondent – Yamin and Anr.


11. Main Law Points Involved - Whether the present election petition satisfies the requirements

of Section 176(1) of the Haryana Panchayati Raj Act, 1994?

12. Grounds of Challenge – Legality of the order passed by the election tribunal relating to the

provision of Limitation Act, 1963 for condonation of delay in filing a suit, to challenge the

elections of the petitioner


• Major Singh vs. Pesiding Officer, Election Tribunal (A.D.C.) and Ors. 2010(5) R.C.R.

(Civil) 934.

14. Area of Dispute –Election




863

510

16. Provisions of Laws Involved - Constitution Of India - Article 227; Haryana Panchayati Raj

Act, 1994 - Section 176(1).


Election for the post of Sarpanch of Gram Panchayat, Kultajpur Kalan, Tehsil Ferozepur Zhirka,

District Mewat was held and the petitioner and respondents contested the said election. The

petitioner was elected as Sarpanch of the Gram Panchayat. Respondent No. 1-Yamin filed an

election petition under the provisions of Haryana Panchayati Raj Act, 1994 in the Court of

learned Civil Judge, District Mewat, assailing the election of the petitioner. On notice, the

petitioner appeared and filed an application alleging that according to Section 176(1) of the Act,

the election petition is required to be presented by the election petitioner in person, but in the

instant case, election petition has not been presented in person by respondent No.1 and the same

has been presented by the counsel for respondent No.1. Therefore, the election petition is liable

to be dismissed. Respondent No. 1 alleged that the election petition was presented in person

along with his counsel and that there is no provision in the Act requiring presentation of election

petition in person by the election petitioner. The trial Court dismissed the said application moved

by the petitioner. Hence, the present revision petition was filed.


The court observed that it was the duty of the counsel as well as respondent No. 1, in view of the

mandatory provisions i.e. Section 176(1) of the Act to present the election petition in person by

election petitioner as the requirement of Act is very clear and that the counsel was required to

get marked the presence of the election petitioner at the time of presenting the election petition

before the Court. Non-compliance of this provision would mean that the election petition was

not validly presented and instituted. Thus impugned order of the trial Court was perverse, illegal

and suffered from jurisdictional error and was therefore not sustainable in the eyes of law.

Revision petition was allowed and impugned order passed by the trial court was set aside.



864

511


The election petition having not been presented and instituted validly in accordance with

mandatory provisions of Section 176(1) of the Act, is liable to be rejected.




865

512

VII. Surender Singh v. State of Haryana and Ors.

1. State - Haryana



4. Name of the Bench - Rajan Gupta, J.

5. Case Number – C.W.P. No. 628 of 2014

6. Name of the case - Surender Singh v. State of Haryana and Ors.


8. Name of Appellant – Surender Singh

9. Name of Respondent – State of Haryana and Ors.


11. Main Law Points Involved - Whether the appointment of BDPO under Section 49 of the

Haryana Panchayati Raj Act, 1994 as authoritative person to carry out the development functions

was valid?

12. Grounds of Challenge – Validity of the appointment of BDPO under Section 49 of the

Haryana Panchayati Raj Act, 1994 as authoritative person to carry out the development functions




16. Provisions of Laws Involved - Haryana Panchayati Raj Act, 1994 - Section 49.



866

513


Petitioner prayed for a writ in the nature of certiorari for quashing the order passed by Deputy

Commissioner, Sonipat and order passed by Block Development & Panchayat Officer, Gannaur.

Orders have been assailed on the ground that petitioner being elected representative of

inhabitants of the village is entitled to carry out the development works in the village. It was

alleged that orders passed by the Deputy Commissioner and BDPO are unsustainable being

violative of Haryana Panchayati Raj Act, 1994. After notice of motion was issued, State filed

reply stating that petitioner had failed to carry out the development works in the village and

utilise the grants and hence Block Development & Panchayat Officer was authorized to carry out

the necessary works.


The court observed that the Petitioner had been Sarpanch of the village for the last 4 years. There

was nothing on record to show that he had carried out any development work in the village. In

case of default of duties by the Gram Panchayat, Section 49 of the Haryana Panchayati Raj Act,

1994 can be invoked to appoint any other person to carry out the development work in the

village. Besides, counsel for the petitioner was not able to explain why petitioner had preferred

this writ petition in personal capacity without any resolution being passed by the Gram

Panchayat. Under the circumstances, there was no ground to interfere in writ jurisdiction and

hence the petition was dismissed.


Section 49 of the Haryana Panchayati Raj Act, 1994 can be invoked to appoint any other person

to carry out the development work in the village. This court cannot accept the argument that

even if an elected representative fails to perform his duties, State would have no power to

authorise a government official to carry out the task of development in a village.




867

514

VIII. Isrial v. State of Haryana

1. State - Haryana



4. Name of the Bench - Paramjit Singh Patwalia, J.


6. Name of the case – Isrial v. State of Haryana


8. Name of Appellant – Isrial

9. Name of Respondent – State of Haryana


11. Main Law Points Involved – Whether the dismissal of election petition on the grounds of

delay as well as non appearance of the petitioner was valid?

12. Grounds of Challenge – Validity of the dismissal of election petition on the grounds of

delay as well as non appearance of the petitioner


• Major Singh vs. Pesiding Officer, Election Tribunal (A.D.C.) and Ors. 2010(5) R.C.R.

(Civil) 934

• Dindar vs. Yamin and Anr. C.R. No. 4794 of 2012


15. Area of Dispute Category – Eligibility of Candidates.



868

515

16. Provisions of Laws Involved - Constitution Of India - Article 226, Constitution Of India -

Article 227; Haryana Panchayati Raj Act, 1994 - Section 176(1)


Election for the post of Sarpanch of Gram Panchayat of village Mohdamaka was held and the

result was declared on that very day. The petitioner filed an election petition, under Section

176(1) of the Haryana Panchayati Raj Act, 1994 for challenging the validity of the election of

Sarpanch. The election petition before the Civil Court, exercising the powers of Election

Tribunal, was filed after expiry of 30 days of limitation prescribed under the Act. It was the case

of the petitioner before the Civil Court that he could not file the election petition in time since

the Court was on vacation and the day it opened, on that very day, the election petition could not

be filed. However, the same was filed the next day. It was also one of the grounds that on the

day of re-opening, the advocates were on strike, which resulted in delay and application for

condonation of delay was also filed. After considering the contentions of the parties, the learned

Additional Civil Judge (Senior Division), dismissed the election petition on the ground of delay

as well as on the ground of non-appearance of the petitioner at the time of filing the election

petition. Hence the present petition was filed, challenging the above order.


It was admitted by the counsel for the petitioner that when the petition was filed, the petitioner

was not present. Even if the delay was deemed to have been condoned by the Court, even then

election petition was liable to be dismissed since it was not validly presented in view of the

provisions of the Act and settled law on the subject. Since the mandatory requirements of the

provisions contained in Section 176(1) of the Haryana Panchayati Raj Act, 1994 were not met,

the order of the Additional Civil Judge was correct and hence the petition was dismissed.


In view of Section 176(1) of the Act, election petition is to be presented by the election

petitioner in person. Non-compliance of this statutory provision would mean that election

petition was not validly presented.




869

516

IX. Deepak Sharma v. Hardeep Kaur and Others

1. State - Punjab



4. Name of the Bench - Rajiv Narain Raina, J.

5. Case Number – Cr No. 454 of 2014

6. Name of the case - Deepak Sharma v. Hardeep Kaur and Others


8. Name of Appellant – Deepak Sharma

9. Name of Respondent – Hardeep Kaur and Others

10. Case Type – Writ Petition (criminal)

11. Main Law Points Involved - Whether in the present case the Election Tribunal was correct

in ordering a recounting of votes?

12. Grounds of Challenge – The legality of the order of Election Tribunal directing recounting

of votes?


• Gurnam Bindra Singh vs. Kulwant Singh and Ors. 2007 (3) ARBLR 480 P H

• Shri Jitendra Bahadur Singh vs. Shri Kirshna Behari and Ors. 1970 SCR (1) 852

• Arun Kumar Bose vs. Mohd. Furkan Ansari and Ors. 1984 SCR (1) 118

• Bharat Singh vs. Dalip Singh and others AIR 1996 P H 271

• Radha Kishan vs. Election Tribunal-cum-Sub-Judge and Anr. (1999-3)123 P.L.R. 1

(F.B.)

• Ram Sewak Yadav vs. Hussain Kamil Kidwai and Ors.;

• Bhabhi vs. Sheo Govind and Ors. 1964 SCR (6) 235



870

517

• M. Chinnasamy vs. K.C. Palanisamy and Ors. [2004 (6) SCC 341] Darshan Singh vs.

Deputy Commissioner-cum-Presiding Officer, Election Tribunal and Ors. (2000) 125

PLR


15. Area of Dispute Category – Eligibility of candidates.

16. Provisions of Laws Involved - Constitution Of India - Article 227; Punjab State Election

Commission Act, 1994 - Section 108, Punjab State Election Commission Act, 1994 - Section 21,

Punjab State Election Commission Act, 1994 - Section 66.


Elections to the Gram Panchayat Raidharana were held. The post of Sarpanch in Gram

Panchayat village Raidharana was reserved for women candidates. The petitioner-Deepak

Sharma and the 1st respondent-Hardeep Kaur contested for the post in the elections held for the

post of Sarpanch. The petitioner polled 1541 votes whilst Hardeep Kaur polled 1476. Aggrieved

by the result of the election, the losing candidate Hardeep Kaur filed an election petition before

the Election Tribunal. It was complained that the returning officer did not provide a copy of the

result of the election on the spot even though asked for repeatedly and which was available after

three days from the day of polling by the office of the Sub Divisional Magistrate, Moonak. It

was alleged that wrong procedure was adopted in the election; the polling and counting officers

were appointed in connivance with the successful candidate and the SDM concerned; fake

persons had cast votes in favour of the winning candidate or in the names of dead persons; votes

of people living abroad were cast to the detriment of the losing candidate. Election rules and

legal provisions were violated. It was averred that every presiding officer in case of more than

one booth would seal the ballot boxes after casting of votes polled in each booth and would carry

the boxes in bags from the respective polling booths to one place for counting all the votes

together in the presence of the returning officer. It was complained that in the present case,

counting was done at three different polling booths which is against the procedure laid down.

Hardeep Kaur contended that she protested but her protests went unheeded that counting did not

take place in one spot. At the time of counting, the election petitioner was present at booth No.

34, her polling agents at booth No. 35 and 36 which are the three disputed booths. But the



871

518

polling agents were not allowed to stand near the counting table, nor were any reasons given for

rejection of ballot papers, which were being cancelled. Charge of connivance with election staff

was alleged in the election petition and re-counting of votes was demanded as an alternative

prayer. The Election Tribunal by the impugned order ordered re-counting of votes. Aggrieved by

the order of re-counting the successful candidate approached this Court through the present

petition filed under Article 227 of the Constitution challenging its correctness.


Re-count of votes cannot be ordered as a matter of course on the mere asking. The sanctity and

secrecy of votes has to be preserved. A very strong prima facie ground should be made out by a

person seeking re-count of votes. If even the allegation regarding rejection of votes is prima

facie taken to be corrupt, it does not have the effect of changing the result and the Tribunal in

ordering re-counts exceeds its jurisdiction and amounts to disturbing the confidence of the voter

and violation of sanctity attaching to secrecy of votes.

For rejection of ballot papers the Presiding Officer has to record reasons for its rejection. If the

votes have been rejected without recording any reason it would vitiate the election. But, that is

not the case set up by Hardeep Kaur that the ballot papers were wrongly rejected or the reasons

for rejection were bad. The truth of the matter is that her duly authorized polling agents were

present in the booths when the ballot boxes were opened and votes counted in the three booths.

The complaint is that they were 10 to 12 feet away and not to tables and not that they were not

present there at all or that the counting was done behind their back. If this were true then

Hardeep Kaur could reasonably be expected to have raised a hue and cry there and then but she

did not do so. Nor is there any evidence to suggest to the contrary. The Court thus set aside the

order of re-counting as not legal and factually justified and allowed the petition.


Violation of any and every procedural provision would not by itself entail an order for recount of

votes. In such cases, it is to be examined and ascertained whether any prejudice has been caused

to either of the parties. In a case of prejudice having been caused appropriate orders would be

required to be passed to remedy the same including the recount of votes. If, however, no

prejudice is established to have resulted therefrom it is obvious that no interference is called for.



872

519

20. Obiter Dicta-

The Court must proceed consciously and with circumspection, having regard to the requirement

of maintaining secrecy of ballot papers before giving direction of re-counting of ballot papers.



873

520

X. Prithi Ram v. Gram Panchayat of village Reona Bhola

1. State - Punjab



4. Name of the Bench - Hemant Gupta and Fateh Deep Singh, JJ.

5. Case Number – C.W.P. No. 994 of 1988 (O&M)

6. Name of the case - Prithi Ram v. Gram Panchayat of village Reona Bhola


8. Name of Appellant – Prithi Ram

9. Name of Respondent – Gram Panchayat of village Reona Bhola


11. Main Law Points Involved - Whether the land under disputed vested with the Gram

Panchayat in terms of Section 2(g)(1) of the Punjab Panchayati Raj Act 1994 ? Whether the

claim of the Gram Panchayat is barred by limitation?

12. Grounds of Challenge – Legality of the claim that land under dispute vested with the Gram

Panchayat in terms of Section 2(g)(1) of the Punjab Panchayati Raj Act 1994


• Naurang Singh (Died) vs. The State of Punjab and Ors. (1997) 115 PLR 363

• Jai Singh and Ors. vs. State of Haryana (2003) 134 PLR 658


15. Area of Dispute Category – Dispute over ownership of buildings and land.



874

521

16. Provisions of Laws Involved - Punjab General Clauses Act, 1898 - Section 2(40); Punjab

Panchayati Raj Act 1994 - Section 10


The challenge in the present writ petition is with regard to an order passed by the Collector in an

application under Section 7 and 11 of the Punjab Village Common Lands (Regulation) Act, 1961

and the order in an appeal under Section 7 and 11 of the Act passed by the Commissioner against

the said order. The Gram Panchayat filed a petition under Section 7 of the Act and later a

petition under Section 11 of the Act. Both the petitions were decided by the common order,

impugned in the present writ petition. In the petition under Section 11 of the Act, the assertion of

the Gram Panchayat is that the land vested in Panchayat from the date of enforcement of the

shamilat law and has been under its management, whereas the respondents (present petitioners)

are now denying the title of Gram Panchayat on the basis of long possession. The present

petitioners in the reply asserted that the Panchayat has never managed this land. It has been

under actual use, occupation and cultivation of the petitioners. It was asserted that the present

petitioners are in actual possession of land prior to 26.01.1950 and continue to be in possession

thereafter. It is also asserted that in earlier proceedings initiated under Section 7 of the Act, a

finding was returned that the petitioners were in actual possession of the land even prior to

26.01.1950, therefore, in view of the said decision, the petition under Section 11 of the Act is not

tenable. The Commissioner under the Act returned a finding that as per Jamabandi for the year

1947-48, Panchayat is the owner of the land under dispute. Hence, the petition was filed


The court observed that in the present case the land in dispute was proved to be vested with the

Gram Panchayat in terms of Section 2(g)(1) of the Punjab Panchayati Raj Act 1994. The court

further held that the contention, that the claim of the Gram Panchayat is barred by limitation is

clearly not sustainable. The cause of action to claim possession is the recurring cause of action,

therefore, the limitation of 30 days would not be applicable to the proceedings initiated by the

Panchayat. In view of the above there was no merit in the present writ petition and hence the

same was dismissed.



875

522


The limitation of 30 days has to be calculated from the date of accrual of cause of action. Since

the cause of action to claim possession is the recurring cause of action, therefore, the limitation

of 30 days would not be applicable to the proceedings initiated by the Panchayat.

20. Obiter Dicta-

A petition under Section 11 of the Act is a petition to seek adjudication of title over the land said

to be vesting in Panchayat. Such petition is required to be filed in the manner prescribed under

Rule 21-A of the Rules.



876

523

XI. Parbandhak Committee Gurdwara v. Darshan Kaur and Ors.

1. State - Punjab



4. Name of the Bench - Dr. Shekher Dhawan, J.

5. Case Number – RSA No. 1395 of 2014(O&M)

6. Name of the case - Parbandhak Committee Gurdwara v. Darshan Kaur and Ors.


8. Name of Appellant – Parbandhak Committee Gurdwara

9. Name of Respondent – Darshan Kaur and Ors.



a) Whether plaintiffs are entitled to joint possession of the land?

b) Whether plaintiffs have locus standi to file the present suit?

c) Whether the suit is within limitation?

d) Whether the suit is bad for non-joinder and mis-joinder of necessary parties?

e) Whether the suit is not maintainable in the present form?

12. Grounds of Challenge – Entitlement of the plaintiffs are entitled to joint possession of the

land



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• State of Haryana vs. Mukesh Kumar and Ors. Special Leave to Appeal (Civil)

No. 28034 of 2011

• Chatti Konati Rao and Ors. vs. Palle Venkata Subba Rao CIVIL APPEAL NO.

6039 OF 2003



16. Provisions of laws Involved - Punjab Land Revenue Act, 1967 - Section 44


The plaintiffs Darshan Kaur and Kashmir Kaur had filed suit for joint possession of land

measuring 59 kanals 12 marlas. As per the plaintiffs, they are joint owners/co-sharers to the

extent of 29 kanals 16 marlas being 1/2 share of the total land, as per jamabandi for the years

1998-99 of Village Chhaula Tehsil Phillaur, District Jalandhar. The said land was left with

defendants Nos. 3 to 8 as care takers in their absence but they encroached upon the same and

established two institutions i.e. Gurudwara and School and started misappropriating the

proceedings of the remaining property. They contended that Defendants No. 1 to 8 have no right

to continue in possession of the same property and they were duty bound to restore the suit

property to its original condition by way of removal of super structure. The request made to

defendants was of no use and, as such, the suit before the trial Court.

Defendants No. 1 to 5 and 8 contested the suit taking legal objection regarding maintainability of

suit and locus standi of the plaintiffs. As per defendants, Sadhu Singh son of Thakur Singh never

sold the suit property to the plaintiffs. Even defendants No. 9 to 17 had no right or title in the suit

property. The entries in the revenue record were wrong, illegal, null and void. The sale deed

allegedly executed by Sadhu Singh was false, forged and fabricated. In fact, the property was

lying in the shape of 'Jungle' and residents of the village by spending huge amount collectively

cleared and leveled the land. Prior to 1972-73, the total suit land was affected by river Sutlej and



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after making some improvements, a Gurudwara was constructed over a part of suit property by

the people of the Village. In 1974, a school building was constructed with joint collection by the

people of the Villages . After a few years a Government Primary School was started in the

building. Veterinary Hospital was constructed by the villagers in 1997 on part of the suit

property and later on State of Punjab established its veterinarian Hospital. There was a

'Shamshan Ghat in the part of the suit property. The defendants took the plea that the plaintiffs

and defendants No. 9 to 17 are co-sharers in the suit property and thus the suit be dismissed


The Court observed that the findings recorded by the Court of First appeal are based on facts of

this case and evidence available on file. The present appeal did not involve any substantial

question of law except appreciation of evidence and facts which had already been done by the

Courts below. Resultantly, the present appeal was without any merit and thus was dismissed.


the first instance that opposite party against whom they are seeking adverse possession are the

owners of the property and only because of long and established possession, they had become

owners of the suit property.

20. Obiter Dicta-

The Parliament must seriously consider at least to abolish "bad faith" adverse possession, i.e.,

adverse possession achieved through intentional trespassing. Actually believing it to be their

own could receive title through adverse possession sends a wrong signal to the society at large.

Such a change would ensure that only those who had established attachments to the land through

honest means would be entitled to legal relief."



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526

XII. Mohinder Singh v. State of Punjab and Ors.

1. State - Punjab



4. Name of the Bench - Rajive Bhalla and Rakesh Kumar Jain, JJ.

5. Case Number – Civil Writ Petition Nos. 13145, 13147 and 13915 of 2009

6. Name of the case –– Mohinder Singh v. State of Punjab and Ors.

7. Date of Judgment – 08.11.2013

8. Name of Appellant – Mohinder Singh

9. name of Respondent – State of Punjab and Ors.


11. Main Law Points Involved - Whether the eviction of the petitioners was maintainable on

the ground that the land vested in the Gram Panchayat and that the petitioners were in

unauthorized possession of the same?

12. Grounds Challenge – Maintainability of the eviction of the petitioners on the ground that

the land vested in the Gram Panchayat and that the petitioners were in unauthorized possession

of the same



15. Area of Dispute Category – Dispute among Panchayatas and between Panchayats and State

Departments/ Agencies.



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527

16. Provisions of Laws Involved - Code of Civil Procedure, 1908 (CPC) - Order XLI Rule 27;

Punjab Municipal Act, 1911 - Section 5(1); Punjab Panchayati Raj Act 1994 - Section 3, Punjab

Panchayati Raj Act 1994 - Section 3(4); Punjab Tenancy Act 1887 - Section 11.


The Gram Panchayat of Village Begowal filed applications under Section 7 of the Punjab

Village Common Lands (Regulation) Act, 1961 for eviction of the petitioners, pleading that the

petitioners were in an unauthorized possession over land belonging to the Panchayat. The

petitioners however contended that the land in dispute had fallen within territorial limits of

Municipal Council, Mukerian, by virtue of a notification issued by the Punjab Government and

hence the Gram Panchayat was left with no right, title or interest either to file or to maintain an

application under Section 7 of the 1961 Act.

The District Development and Panchayat Officer, Hoshiarpur, vide an order allowed the

application of the Gram Panchayat, by observing that the petitioners had failed to produce any

evidence that the land in dispute had been included in Municipal Council, Mukerian. It was also

observed that even if it was assumed that the land had been transferred to the Municipal Council,

but as the petitioners were in unauthorised possession they could be evicted on an application

filed under Section 7 of the Act. The petitioners filed a statutory appeal under section 7(2) of the

Act, before the Joint Development Commissioner, along with an application under Order 41

Rule 27 of the Code of Civil Procedure, 1908 to produce a copy of the notification issued by

Punjab State Election Commissioner in respect of Mukerian Block. The Appellate Authority

dismissed the appeal holding that even if land in dispute had been included in Municipal

Council, the petitioners, being in unauthorised possession, could be evicted on an application

filed under section 7 of the Act. Hence, the present petition was filed.


Upon issuance of a notification under section 5(1) of the Punjab Municipal Act, 1911 for

including the sabha area of a Gram Panchayat within municipal limits, section 3(4) of the Punjab

Panchayati Raj Act, 1994 comes into effect, bringing to an end the Gram Panchayat as an

administrative unit and leads to a statutory vesting of its assets in a Municipal Council. If whole



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528

of the Gram Sabha area is included in an urban estate to which the provisions of the Punjab

Municipal Act, 1911 or the Punjab, Municipal Corporation Act, 1976, are applicable or in a city,

municipality, cantonment, or Notified Area under any law for the time being in force, the Gram

Sabha and the Gram Panchayat for that area shall cease to exist and the assets and liabilities of

the Gram Panchayat shall be disposed of in the prescribed manner. The net result of a

notification issued under section 5(1) of the Punjab Municipal Act, 1911, read with section 3(4)

of the 1994 Act is that the Gram Panchayat ceases to exist, provisions of the 1961 Act no longer

apply and therefore, a Collector exercising power, under section 7 of the 1961 Act, to put a

Gram Panchayat in possession of land that vests or is deemed to have vested in a Gram

Panchayat under the 1961 Act can no longer pass an order putting the Gram Panchayat in

possession. The court thus held that the writ petitions be allowed and the impugned orders be set

aside with the liberty to the Municipal Council, to file a petition under the Punjab Public

Premises Act, 1973, for eviction of the petitioners. In case such a petition is filed, it shall be

considered and decided, within three months of its presentation.


The net result of a notification issued under section 5(1)of the Punjab Municipal Act, 1911, read

with section 3(4) of the Punjab Panchayati Raj Act 1994 is that the Gram Panchayat ceases to

exist, the "Shamilat Deh" of a Gram Panchayat no longer vests in a Gram Panchayat, provisions

of the 1961 Act no longer apply and, therefore, a Collector exercising power, under section 7 of

the 1961 Act, to put a Gram Panchayat in possession of land in "Shamilat Deh", that vests or is

deemed to have vested in a Gram Panchayat under the 1961 Act, can no longer pass an order

putting the Gram Panchayat in possession. It is true that rights of parties to a pending lis are

crystalised on the date of commencement of the lis but as the Gram Panchayat has ceased to

exist and can no longer be put in possession, a petition under Section 7 of the 1961 Act, cannot

continue. if during pendency of proceedings under Section 7 or 7-A of the 1961 Act, the Gram

Panchayat ceases to exist as a result of the sabha area being included within municipal limits, the

Collector or the Appellate Authority can no longer proceed with a petition or an appeal under

Section 7 or 7-A of the 1961 Act.




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529

XIII. Jagdish Chander Sarpanch v. State of Haryana and Others

1. State – Haryana



4. Name of the Bench - Rakesh Kumar Jain, J.


6. Name of the case - Jagdish Chander Sarpanch v. State of Haryana and Others

7. Date of Judgement – 12.07.2013

8. Name of Appellant – Jagdish Chander Sarpanch

9. Name of Respondent – State of Haryana and Others


11. Main Law Points Involved – Whether a complaint against Petitioner could be entertained

by official Respondents, again on the same set of allegations?

12. Grounds of Challenge – Legality of entertaining the complaint against Petitioner official

Respondents again on the same set of allegations


• Mewa Singh, Sarpanch, Gram Panchayat, Chhatar Block, Uchana vs. Secretary,

Development and Panchayat Dept., Government of Haryana and others LAWS(P&H)-1989-1-11

14. Area of Dispute – Civil

15. Area of Dispute Category – Dispute among Panchayats and between Panchayats and State

Departments/ Agencies.



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530

16. Provisions of Laws Involved - Haryana Panchayati Raj Act, 1994 - Section 51, Haryana

Panchayati Raj Act, 1994 - Section 51(1)(a), Haryana Panchayati Raj Act, 1994 - Section 51(3)


100 Sq. yards plot was to be allotted under the Mahatma Gandhi Gramin Basti Yojna to the

weaker section of the society, including the Scheduled Caste and other landless persons who

were not having a house in the village. A committee of 5 members was constituted for

securitization of applications and allotment of plots to the deserving candidates. 79 deserving

candidates were found to whom 51 plots of 100 Sq. yards each were allotted. The left over 28

plots could not be allotted but the allegation against the petitioner was that he had, on his own,

allotted plots to 39 ineligible candidates and gift deeds were also executed in their favour.

Respondent Nos. 5 and 6 made a complaint about the irregularity committed by the petitioner on

the basis of which a regular enquiry was ordered which was conducted by DDPO, Sirsa, who,

vide his inquiry report recommended that Om Parkash, Social Education and Panchayat Officer

and the petitioner were remiss in performing their duties while executing the gift deeds in favour

of 39 ineligible persons intentionally. He recommended that it would be appropriate to take

action against the petitioner under the provisions of Section 51 of the Haryana Panchayati Raj

Act, 1994. On the basis of the aforesaid report, a show cause notice was served upon the

petitioner by respondent No. 2 as to why action should not be taken against him to which he

filed his reply. Respondent No. 2, who was the punishing authority of the petitioner, passed an

order warning the petitioner that in future such type of mistake should not be repeated.

Respondent Nos. 5 and 6 again made a complaint against the petitioner on the same set of

allegations, on the basis of which the impugned order was passed by the respondent No. 2 for

holding a regular inquiry against the petitioner as well as for registration of a criminal case

against him. However the error committed by the petitioner had already been corrected by way

of a resolution by which 39 gift deeds executed by him had been annulled.


Section 51(1)(a) of the Haryana Panchayati Raj Act, 1994 provides that the Director/Deputy

Commissioner concerned may suspend any Sarpanch or a Panch, as the case may be, against

whom a case is under investigation, enquiry or trial. It was held that the second enquiry was



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531

thus, a sheer abuse of process of law at the hands of respondent No. 2. Not only that, once the

error committed by the petitioner had been knocked down by way of resolution, there was hardly

any ground to proceed under the provisions of the Indian Penal Code. Thus the writ petition was

allowed and the impugned orders were quashed.


It violates the principle of natural justice if a person, against whom earlier an inquiry has been

held and no action has been taken by the competent authority except for extending warning, is

again summoned to hold the second regular enquiry against him especially when the second

inquiry is not contemplated under the statute.




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532

XIV. Gurmeet Kaur v. Director Rural Development and Panchayats and Gram Panchayat

v. Harbans Kaur

1. State - Punjab




5. Case Number – C.W.P. No. 22888 of 2012 (O&M) and R.S.A. No. 3078 of 1997 (O&M)

6. Name of the case - Gurmeet Kaur v Director Rural Development and Panchayats and Gram

Panchayat v. Harbans Kaur


8. Name of Appellant – Gurmeet Kaur and Gram Panchayat

9. Name of Respondent – Director Rural Development and Panchayats AND Harbans Kaur



a. Whether in a suit for injunction, learned Civil Court could examine whether the land

vests with panchayat or not?

b. Whether the directions by the Collector to take recourse to the proceedings under

Section 21 and 23 of the Punjab Gram Panchayat Act, 1952 could be challenged before the Civil

Court?

c. Whether the first appeal could be dismissed for want of resolution authorizing a

Sarpanch of the Gram Panchayat to file first appeal?

12. Grounds of Challenge – Whether in a suit for injunction, learned Civil Court could examine

whether the land vests with panchayat or not? Whether the directions by the Collector to take



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533

recourse to the proceedings under Section 21 and 23 of the Punjab Gram Panchayat Act, 1952

could be challenged before the Civil Court? Whether the first appeal could be dismissed for want

of resolution authorizing a Sarpanch of the Gram Panchayat to file first appeal?


• Udey Singh vs. Gram Panchayat Nangal Jat RSA No. 2829 of 2008 (O&M)

• Ram Singh and Ors. vs. Gram Panchayat Mehal Kalan and Ors. Special Leave Petition

(Civil) No. 7309 of 1986

• Bhagu and Ors. vs. Ram Sarup and Anr. AIR 1985 P H 257

• Dhruv Green Field Ltd. vs. Hukam Singh and Ors. Appeal (civil) 4565 of 2002

• Babu Ram and Ors. vs. Gram Sabha Buhavi and Anr. 1988 SCR (3) 436



16. Provisions of Laws Involved- Section 7 of the Punjab Village Common Lands (Regulation)

Act, 1961; Section 21 and 23 of the Punjab Gram Panchayat Act, 1952; Section 11 of the Punjab

Gram Panchayat Act, 1952.


The plaintiffs filed a suit for permanent injunction for restraining the defendants- Panchayat

from interfering in the possession of their house or demolishing the room marked ABCD being

part of the house or in any manner dispossessing the plaintiffs from the house and the gate

shown as EF in the site plan. The claim of the plaintiffs was that the property was owned and

possessed by them as they were in possession for more than 50 years and that the panchayat

claimed the property in dispute as a common street and filed a petition under Section 11 of the

Act, which was dismissed. The said decision had become final and thus the property in dispute

had not been declared as street. The challenge was also made to the proceedings initiated by the



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Panchayat under Section 21/23 of the Gram Panchayat Act, 1952 in view of the findings

recorded in proceedings under Section 11 of the Act.


The Court held that the question as to whether, the land in question vested with Panchayat or not

could not examined by the Civil Court. The action of Panchayat in terms of Section 21/23 of the

Punjab Gram Panchayat Act, 1952 (now section 34/36 of the Punjab Panchyati Raj Act, 1994)

,was a judicial function. The machinery was provided to exercise such powers. Therefore, the

jurisdiction of the civil court would stand impliedly barred in terms of Section 9 of the Code of

Civil Procedure. Since the resolution authorizing the Sarpanch had been produced on record,

which fact had not been controverted, therefore, the dismissal of the first appeal on the ground

that Sarpanch was not authorized to file an appeal was clearly not sustainable. In view of the

decision on the above three substantial question of law, the court found that the judgment and

decree passed by the Courts below suffered from patent illegality and irregularity. Consequently,

the regular second appeal was allowed. Judgment and decree passed by the Courts below were

set aside and the suit was dismissed.With respect to the writ petition the court held that the

appellants could not prove in the court or in the Lower Court that the disputed place in the Gali

belonged to them. This was a public street and the obstruction was required to be removed. Since

the petitioners had been found to be encroachers on a public street, the court did not find any

merit in the present writ petition. The same was dismissed. However with respect to the

encroachment by Harbans Kaur the Panchayat was directed to conclude the proceedings, if not

already concluded, immediately.


The jurisdiction of the civil court would stand impliedly barred in terms of Section 9 of the Code

of Civil Procedure.




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XV. Gurdial Singh v. Additional Director Panchayats

1. State - Punjab



4. Name of the Bench - Rajive Bhalla, Paramjit Singh Patwalia and Jaspal Singh, JJ.

5. Case Number – CWP No. 5265 of 1992 Alongwith CWP Nos. 5343 and 5271 of 1992.

6. Name of the case - Gurdial Singh v. Additional Director Panchayats


8. Name of Appellant – Gurdial Singh

9. Name of Respondent – Additional Director Panchayats

10. Case Type –Writ Petition (civil)

11. Main Law Points Involved - Whether statutory authority known as "panchayat", constituted

under Act, to carry out management and control of various kinds of land in revenue estate, was

covered under words "any person" and competent to file petition under Sections 7 and 11 of the

Punjab Village Common Lands (regulation) Act, 1961?

12. Grounds of Challenge – Scope of the statutory authority known as "panchayat", constituted

under Act, to carry out management and control of various kinds of land in revenue estate, under

Sections 7 and 11 of the Punjab Village Common Lands (regulation) Act, 1961


• Gurnam Singh vs. The District Development Officer (Collector) Patiala and another

CWP No. 7226 of 1989

• Naurang Singh (Died) vs. The State of Punjab and Ors. (1997) 115 PLR 363



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536

• Regional Director, Employees' State Insurance Corporation vs. High Land Coffee Works

of P.F.X. Saldanha and Sons and Anr. 1991 SCR (3) 307

• Bhagwan Das Sita Ram, H.U.F. represented by its Karta Sita Ram vs. Commissioner of

Income Tax, Lucknow (U.P.) 1984 SCR (3) 100


15. Area of Dispute Category – Dispute among Panchayats and between Panchayats and tate

Departments/Agencies.

16. Provisions of Laws Involved - Constitution Of India - Article 14; General Clauses Act 1897

- Section 2(e), General Clauses Act 1897 - Section 3(42); Punjab General Clauses Act, 1898 -

Section 2(47); Punjab Panchayati Raj Act 1994 - Section 10, Punjab Panchayati Raj Act 1994 -

Section 2(zj), Punjab Panchayati Raj Act 1994 - Section 6; Punjab Village Common Lands

(regulation) Act, 1961 - Section 11, Punjab Village Common Lands (regulation) Act, 1961 -

Section 11(1), Punjab Village Common Lands (regulation) Act, 1961 - Section 11(2), Punjab

Village Common Lands (regulation) Act, 1961 - Section 12, Punjab Village Common Lands


Section 2(g), Punjab Village Common Lands (regulation) Act, 1961 - Section 4, Punjab Village

Common Lands (regulation) Act, 1961 - Section 4(1)(b), Punjab Village Common Lands


Section 7.


The question of law that arose for consideration in the writ petitions, directed against the orders

passed by Additional Director Panchayats, Punjab, exercising the powers of Commissioner

under the Punjab Village Common Lands (Regulation) Act, 1961 was whether the statutory

authority known as a "panchayat", constituted under the Punjab Gram Panchayat Act, 1952 (now

Punjab Panchayati Raj Act 1994), to carry out management and control of various kinds of land

in the revenue estate, was covered under words "any person" and competent to file petition under

Section 11 read with Section 7 of the Punjab Village Common Lands (regulation) Act, 1961?

The question had arisen, as before Section 11 was amended to include a "panchayat" the words



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537

"any person" were interpreted to exclude a panchayat from the right to file a petition under

Section 11 of the Act.


The court held that Section 11 had been used in widest term, which included panchayat which

was intimately connected in affairs of village and management of shamilat land under provisions

of Act. Amendment was made in Act and after words 'any person' appearing in Section 11(1)

words 'or panchayat' had been added and word "panchayat" was already existing in Section 11(2)

meaning thereby that rights vested in panchayat as well as in any other person. . This fact is

further strengthened by the fact that in the year 1993 amendment was made in the Act and after

the words 'any person' appearing in Section 11(1) words 'or panchayat' have been added and the

word "panchayat" was already existing in Section 11(2) meaning thereby the rights vest in

panchayat as well as in any other person It was not confined to persons who were other than

panchayat. The reference was answered in these terms with the directions that the writs be

placed before the appropriate bench.


The expression 'any person' in Section 11 has been used in widest term, which includes the

panchayat which is intimately connected in the affairs of village and management of the shamilat

land under the provisions of the Act.

20. Obiter Dicta-

The provisions of the Act are aimed at restoring status quoante and remove the barriers between

'haves' and 'have-nots' so that inhabitants of the village can live community life as equals.



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538

XVI. Gram Panchayat v. Commissioner and Deenu v. Gram Panchayat

1. State - Punjab



4. Name of the Bench - Hemant Gupta and Fateh Deep Singh, JJ

5. Case Number – C.W.P. No. 22176 of 2012 and R.S.A. No. 4987 of 2012

6. Name of the case - Gram Panchayat v. Commissioner AND Deenu v. Gram Panchayat


8. Name of Appellant – Gram Panchayat AND Deenu

9. Name of Respondent – Commissioner AND Gram Panchayat



a. Whether the learned Appellate Court was justified in reversing the judgment passed by

learned Civil Judge?

b. Whether the judgment of the learned Lower Appellate Court was based upon non-

appreciation and misreading of the evidence and facts?

c. Whether appellant had complied the provisions of Section 5(1)(a) and Section 5(2) of

Punjab Tenancy Act, 1952?

d. Whether the learned lower Appellate Court was justified in reversing the judgment by

holding that the property under the ownership of 'Jumla Malkan' vested with the Gram

Panchayat?



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539

e. Whether the finding recorded by the learned Lower Appellate Court by holding that the

suit land vested with the Gram Panchayat without taking cogent evidence on record regarding

the property reserved for common purpose for the benefit of the villagers was justifiable?

12. Grounds of Challenge – Legality of the decision of the Appellate Court in reversing the

judgment passed by learned Civil Judge and compliance of Section 5(1)(a) and Section 5(2) of

Punjab Tenancy Act, 1952 by the Appellants


• Shiv Charan vs. The Financial Commissioner, Revenue Department and Ors. (2004) 138

PLR 569 /PH/0375/2004

• Jai Singh and Ors. vs. State of Haryana C.W.P.No.1296 of 2005

• Rajdev Singh and another vs. Joint Development Commissioner, Punjab and others

C.W.P. No.21370 OF 2011

• Smt. Ram Piari and others vs. Joint Director Panchayats Punjab Exercising the Powers of

Commissioner and others (1993) 104 PLR 121

• Banwari vs. State of Haryana and Ors. CRWP-689-2015

• Bhagat Ram and Ors. vs. State of Punjab and Ors. 1967 SCR (2) 165

• Roshan alias Roshan Lal and Ors. vs. Secretary, Govt. of Haryana Development &

Panchayat Deptt. and Ors. (1998) 120 PLR 651


15. Area of Dispute Category – Dispute over ownership of buildings and land

16. Provisions of Laws Involved - East Punjab Holdings (consolidation And Prevention Of

Fragmentation) Act, 1948 - Section 18, East Punjab Holdings (consolidation And Prevention Of

Fragmentation) Act, 1948 - Section 2(bb)(iii), East Punjab Holdings (consolidation And

Prevention Of Fragmentation) Act, 1948 - Section 23-A, ; Haryana Panchayati Raj Act, 1994 -



893

540

Section 2(g)(6), Haryana Panchayati Raj Act, 1994 - Section 2(xxix); Punjab Tenancy Act 1887

- Section 5(1)(a), Punjab Tenancy Act 1887 - Section 77.


There were two cases i.e. CWP No. 22176 of 2012 filed by Gram Panchayat, Kalinjar and No.

4987 of 2012 filed by the plaintiff-appellant (respondent No. 3 in the writ petition). Both the

proceedings i.e. writ petition and the appeal pertained to the same land. Deenu (appellant) in

Regular Second Appeal filed a suit for declaration to the effect that he was the owner and in

possession of the suit land and the defendants including Gram Panchayat, Kalinjar had no right,

title or interest in the suit land. The appellant also claimed a decree for permanent injunction

restraining the defendants from dispossessing the plaintiff from the suit land. The appellant

claimed to be occupancy tenant on agricultural land in question without payment of any rent. As

per revenue record, in the column of ownership 'Jumla Mustarka Malkan' were recorded as

owners, therefore, some of them were impleaded to represent the proprietary body in

representative capacity. The plaintiff claimed that he was in possession for last more than 60

years and paid no rent except the amount of land revenue and the rates and cesses for the time

being chargeable thereon. Therefore, he had acquired propriety rights after coming into force of

the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. The plaintiff-appellant

asserted that he had never paid any batai to the defendants or their predecessors-in-interest. The

land was recorded as owned by Gram Panchayat vide mutation. The appellant had earlier filed a

suit claiming ownership against the Gram Panchayat before the Assistant Collector 1st

Gradewhich was decreed. In appeal, the matter was remanded back by the District Collector to

the Assistant Collector 1st Grade. After remand, the Assistant Collector 1st Grade dismissed the

suit. The appeal was also dismissed by the District Collector. The further revision was also

dismissed. However, it was observed that the appellant may seek relief before the competent

Court i.e. Civil Court. The first Appellate Court also recorded a finding that the plaintiff was

recorded as proprietor in the list of proprietors of the Village Kalinjar and thus, he was the co-

owner of the land as per entry in the column of ownership. Hence he could not claim vesting of

propriety rights in him being an owner himself. In the writ petition, challenge was to the orders

passed by the Commissioner in proceedings under Haryana Public Premises and Land (Eviction

& Rent Recovery) Act, 1972.



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541


The Court held that there was no merit in the regular second appeal and that the order passed by

the Commissioner, subject matter of challenge in the writ petition, was not sustainable.

Consequently, the writ petition filed by the Gram Panchayat, Kalinjar was allowed, whereas the

regular second appeal filed by the plaintiff was dismissed.


Panchayat has an option to seek eviction of unauthorized occupant under either of the two

statutes i.e., Punjab Village Common Lands (Regulation) Act, 1961 and Haryana Public

Premises and Land(Eviction and Rent Recovery) Act 1972, both being State Legislations

conferring jurisdiction on the Panchayat to seek eviction of unauthorized occupant.

20. Obiter Dicta-

The'common purposes' for which land can be reserved during the process of consolidation are

mentioned in Section 2(bb)(iii) and (iv) of the East Punjab Holdings (Consolidation and

Prevention of Fragmentation) Act, 1948. Though in terms of Supreme Court judgment in Bhagat

Ram & others v. State of Punjab & others, (AIR 1967 SC 927), the land reserved for income of

the Panchayat during consolidation does not vest in Panchayat, but the land reserved for

Panchayat farm is not reserved for income of the Panchayat.



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XVII. Gram Panchayat Village Sihandaud v State of Punjab and Ors.

1. State - Punjab




5. Case Number – Letters Patent Appeal No. 445 of 2011

6. Name of the case - Gram Panchayat Village Sihandaud v State of Punjab and Ors.


8. Name of Appellant – Gram Panchayat Village Sihandaud

9. Name of Respondent – State of Punjab and Ors.


11. Main Law Points Involved - Whether the resolution passed by the Gram Panchayat

allotting a portion of the panchayat land to a person whose land had been taken over by the

government, was valid?

12. Grounds of Challenge – Legality of the resolution passed by the Gram Panchayat allotting a

portion of the panchayat land to a person whose land had been taken over by the government


14. Area of Dispute – Property


16. Provisions of Laws Involved - Punjab Panchayati Raj Act 1994 - Section 199(1), Punjab

Panchayati Raj Act 1994 - Section 85.



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543


The village Sihandaud was selected by Punjab Government for construction of Focal Point under

different development schemes but while constructing the Purchase Centre, land of some private

persons, including respondent No.5 (Mukhtiar Singh) was utilized by the Government. The

Village Panchayat, vide a resolution resolved to give a certain portion of the Panchayat land to

him. However, on election of a new Panchayat, another resolution was passed by the Panchayat

annulling the earlier resolution because the exchange was found by the Village Panchayat not to

be for the benefit of the Panchayat. The resolution was forwarded by Block Development and

Panchayat Officer to District Development and Panchayat Officer who vide a memorandum

recommended annulment of the earlier resolution to the Director, Rural Development and

Panchayat Officer, Chandigarh, who, vide an order accepted the recommendation of District

Development and Panchayat Officer and annulled the said resolution.

Respondent No. 4 challenged order before the Secretary to Government of Punjab, Department

of Rural Development and Panchayats, exercising the powers of Government, who vide an

order, reversed the order of District Development and Panchayat Officer and quashed the

resolution and restored the earlier resolution. Members of newly constituted Panchayat brought

Civil Writ Petition to challenge the order. The learned Single Judge vide impugned order

disposed of the Civil Writ Petition by observing that there was no infirmity in the order of the

Secretary, Department of Rural Development and Panchayats, Punjab, but the resolution

observed above could not be given effect to without compliance of Section 85 of the Act.


The court observed that the exchange of land by the Village Panchayat vide the earlier resolution

seemed to be an effort to benefit respondent No. 5 and other private persons whose land was

used by the Government to construct Focal Point. The exchange of the land was not shown to be

for the benefit of Village Panchayat or residents of the village. The court held that as regards

order it needed to be stated that it could not be said to be prior approval of exchange of the land

of the Village Panchayat. Observation of the learned Single Judge that the later resolution was a

result of party faction in the village, was not supported by the material available on record and,

as such, deserved to be set aside. Consequently, the court accepted the appeal and set aside order



897

544

passed by the learned Single Judge and also the earlier resolution. However the latter resolution

passed by the Gram Panchayat, Village Sihandaud, annulling the earlier resolution was upheld.


Section 85 of the Punjab Panchayati Raj Act 1994 permits the Village Panchayat to acquire, hold

and dispose of property, but by way of Proviso it has been laid down that in the cases of

acquisition or disposal of immovable property by the Gram Panchayat, it shall obtain the prior

approval of the State Government.




898

545

XVIII. Gram Panchayat, Village Bir Kalwa v Commissioner, Ambala Division

1. State - Punjab





6. Name of the case - Gram Panchayat, Village Bir Kalwa v Commissioner, Ambala Division


8. Name of Appellant – Gram Panchayat, Village Bir Kalwa

9. Name of Respondent – Commissioner, Ambala Division


11. Main Law Points Involved - Whether the land vested in the Gram Panchayat under any of

the clauses of Section 2(g) of Punjab Village Common Lands (Regulation) Act, 1961?

12. Grounds of Challenge – Legality of the land vested in the Gram Panchayat under any of the

clauses of Section 2(g) of Punjab Village Common Lands (Regulation) Act, 1961




16. Provisions of Laws Involved - East Punjab Holdings (consolidation And Prevention Of

Fragmentation) Act, 1948 - Section 18, East Punjab Holdings (consolidation And Prevention Of

Fragmentation) Act, 1948 - Section 23-A, ; General Clauses Act 1897 - Section 8.



899

546


In the present writ petition an order passed by Assistant Collector whereby respondent No. 4 was

ordered to be evicted from the land shown by points IF, FM, MN by demolition of wall,

whereas, he was declared owner of the area CD, DA, CB and BE apart from portion EM, EB,

BJ, MJ adjoining the phirni, was challenged. Feeling aggrieved against the said order, the

appeals filed by the parties were dismissed. Still further, the revision filed by the Panchayat

before the Commissioner remained unsuccessful. Still aggrieved, panchayat filed the present

writ petition. Though, the site plan was not on the record of the writ petition but learned counsel

for the petitioner produced the certified copy of the site plan, which was taken on record.


The court held that the finding of the learned Assistant Collector that the vacant land does not

vest in Panchayat, as the Panchayat had not produced any documentary evidence that it was left

for common purposes of the villagers, was incorrect and contrary to the provisions of Section

2(g)(4a) of the Act, which was inserted by Haryana Act No. 15 of 1983 w.e.f. 12.02.1981 i.e.

even much before the filing of the proceedings under Section 7 of the Act by the Panchayat. It

was held that the order passed by authority under the Act holding that such vacant land would

vest with Respondent No 4 was not sustainable. The said part of the order was set aside and it

was held that the Portion ABCD alone would vest with Respondent No. 4 wherein his house was

constructed. The Petition was thereby allowed.


The use of the land for the common purpose of the inhabitants of the village, in abadi deh or

gora deh land, was relevant prior to addition of clause (4a) vides Haryana Act No. 15 of 1983.

The authorities have overlooked the provisions of Section2(g)(4a) of the Act, which makes the

vacant land within abadi deh as vesting in Panchayat.




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547

XIX. Gram Panchayat Shahbazpur Nawan v State of Punjab and Ors.

1. State - Punjab



4. Name of the Bench - Jasbir Singh and Gurmeet Singh Sandhawalia, JJ.


6. Name of the case – Gram Panchayat Shahbazpur Nawan v State of Punjab and Ors.


8. Name of Appellant – Gram Panchayat Shahbazpur Nawan



11. Main Law Points Involved - Whether there exists any power with the Government, to

review of an order, which has become final?

12. Grounds of Challenge – Whether there exists any power with the Government, to review of

an order, which has become final?




16. Provisions of Laws Involved -Punjab Panchayati Raj Act 1994 - Section 201, Punjab

Panchayati Raj Act 1994 - Section 3(3).



901

548


The Gram Panchayat/Sabha area of Village Shahbazpur was divided into two Gram Sabha areas

with the name of Gram Panchayat Shahbazpur Nawan and Gram Panchayat Shahbazpur Purana.

The Gram Panchayat Shahbazpur was situated on both the sides of Bhakra canal. Thereafter, in

the year 1995 a dispute arose regarding partition of the assets of the parent Gram Panchayat.

When the authorities failed to settle it, Gram Panchayat of Village Shahbazpur Nawan came to

the Court by filing a Civil Writ Petition which was disposed of by noting a statement that

necessary partition shall be affected as per the provisions of the Act. Thereafter on hearing

representatives of both the Gram Panchayats, land/assets were ordered to be partitioned vide an

order. That order became final. It was never challenged before any forum by the Gram

Panchayat of Village Shahbazpur Purana-respondent No. 4. In the year 2012, a representation

was filed by the above said Gram Panchayat, stating that earlier partition was not correct. On

that representation, recommendation was made by Block Development and Panchayat Officer

(BDPO), for re-partition of the land/assets of the parent Gram Panchayat. The District

Development and Panchayat Officer (DDPO did not take action, noting that the assets already

stood partitioned by the competent authority. Respondent No. 4 approached the Director,

Panchayats upon which he recommended fresh partition of the assets of the parent Gram

Panchayat of Village Shahbazpur. In consequence thereto the order under challenge was passed.

The writ petition was filed to quash this order.


The court opined that the power had been given to the State Government only to call for and

examine record of an executive officer of Panchayat or any officer or authority of the Panchayat

for satisfying itself as to the legality and propriety of any order passed. It did not mean that the

State Government had the power, at any time, to review an order passed by it, which has already

become final. Order partitioning the parent Gram Panchayat land, was passed in presence of

representatives of both the Gram Panchayats. No objection was raised to the same at that time.

On the basis of that order, joint assets were partitioned and taken into possession by both the

parties. The Gram Panchayat of Village Shahbazpur Purana-respondent No. 4 woke up after

more than 15 years and raised the issue of partition again by filing a representation. The court



902

549

held that after more than one and a half decade, it would not be open to the State, exercising the

power under section 201 of the Act, to interfere in an order which had become final. Even

otherwise the power under Section 201 of the Act was not a power of review. In view of above,

the writ petition was allowed and the order under challenge was set aside and the order passed

earlier was restored.


The State Government has the power to call for and examine record of an executive officer of

Panchayat or any officer or authority of the Panchayat for satisfying itself as to the legality and

propriety of any order passed under Section 201 of the Punjab Panchayati Raj Act 1994.




903

550

XX. Gram Panchayat Kalawar v State of Haryana and Ors

1. State - Haryana



4. Name of the Bench - Surya Kant and Jaspal Singh, JJ.


6. Name of the case - Gram Panchayat Kalawar v State of Haryana and Ors.


8. Name of Appellant – Gram Panchayat Kalawar

9. Name of Respondent – State of Haryana and Ors.


11. Main Law Points Involved - Whether the Rule 31(A) (ii) under Haryana Panchayati Raj

Rules, 1995 was a valid law?

12. Grounds of Challenge – Legality of the Rule 31(A) (ii) under Haryana Panchayati Raj

Rules, 1995


• Ranjit Singh and Ors. vs. State of Punjab and Ors. Civil Appeal No. 743 of 1963

• Maharastra State Electricity Board vs. Thane Electric Supply Co. and others Civil Appeal

No. 4113 of 1985

• In Re: Special Reference No. 1 of 2012 (2012) 10 SCC 1




904

551




Article 39; Haryana Panchayati Raj Act, 1994 - Section 7, Haryana Panchayati Raj Act, 1994 -

Section 7(3A); Punjab Village Common Lands (regulation) Act, 1961 - Section 5(1).


There arose a dispute between the two Gram Panchayats for the apportionment of movable and

immovable properties including the funds available with the existing Gram Panchayat. The State

of Haryana amended section 7 of Haryana Act 1994 vide Haryana Panchayati Raj (Amendment)

Act, 2013 and inserted sub-section (3A). The Gram Panchayat of Village Kalawar, Tehsil and

District Ambala questioned the validity of Rule 31(A)(ii) of Haryana Panchayati Raj Rules, 1995

added vide a notification. The said Rule enabled apportionment of movable and immovable

properties including funds, between the existing and the newly constituted Gram Panchayat in

proportion of their population. It needs to be notes that originally the Gram Panchayat of village

Kalawar comprised villages Chhapra, Kathgarh, Balapur and Danipur. A separate Gram

Panchayat of Village Balapur, however, came to be constituted in the year 2005. One of the

contentions of the petitioner was that the impugned notification had been issued in violation of

principles of natural justice as the objections submitted by the petitioner-Gram Panchayat though

duly forwarded by the Block Development & Panchayat Officer were neither appropriately

considered nor was the petitioner-Gram Panchayat heard before taking the final decision.


The court observed that the distribution of funds or assets with reference to population for whose

betterment or welfare such assets exist would lead to fair and equitable distribution of

community assets amongst all the beneficiaries in conformity with the constitutional goal

envisaged in Article 39 of our Constitution. Rule 31A essentially gave effect to a public policy.

The court would be reluctant to interfere with it unless it ran down any constitutional mandate or

was directly in conflict with the mandate of a statute. So far as the petitioner-Gram Panchayat's

grievance against non-observance of principles of natural justice was concerned, it may be



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552

noticed that its objections were forwarded by the Block Development and Panchayat Officer. It

could thus be safely inferred that the competent authority did consider those objections before

the publication of notification. However, if the petitioner's objections had actually gone un-

noticed even a post-decisional hearing could be a substantial compliance of the rules of fair and

just play. It would be sufficient to direct the State Government to afford an opportunity of

hearing the representatives of the petitioner-Gram Panchayat and consider its view point and if

there is any merit found in those objections, the State Govt. would be required to give effect to

the consequential decision by way of an appropriate notification. The Court directed the

Principal Secretary, Department of Development and Panchayat, Haryana to communicate the

decision, if any, already taken on the objections submitted by the petitioner-Gram Panchayat or

pass an appropriate order in the light of the observations and directions issued hereinabove and

that needful should be done within two months. Since the order passed by Deputy

Commissioner under Rule 31A of Haryana Panchayati Raj Rules, 1995 is appealable, the

petitioner-Gram Panchayat would be at a liberty to impugn the same before the appellate

authority and the observations made in the order shall have no effect on the merits of its appeal.

With this, the writ petition was dismissed.


Rule 31A of the Haryana Panchayati Raj Rules, 1995 essentially gives effect to a public policy.

And the court cannot interfere with it unless it runs down any constitutional mandate or is

directly in conflict with the mandate of a statute.

20. Obiter Dicta-

The constitutional mandate on policy-framework imposes an onerous duty on the State to

distribute natural resources in consonance with principles of equality and public trust and for the

welfare of general public. Since the availability of assets and funds has a direct bearing on the

development plans of rural area, non distribution of such assets or funds in proportion to the

population would hit the equality clause of Article 14 of the Constitution due to drastic rise or

fall in the average per capita income of inhabitants of the same Gram Sabha only because of

bifurcation of their Gram Panchayats.



906

553

XXI. Gram Panchayat, Garhi Ajit Singh v State of Punjab and Ors.

1. State - Punjab



4. Name of the Bench - Paramjeet Singh, J.

5. Case Number – CWP No. 3286 of 1993 (O&M)

6. Name of the case - Gram Panchayat, Garhi Ajit Singh v State of Punjab and Ors.


8. Name of Appellant – Gram Panchayat, Garhi Ajit Singh



11. Main Law Points Involved - Whether recovery could be affected from Respondent No. 5,

an Ex. Sarpanch, in view of Section 105(4) of the Punjab Gram Panchayat Act, 1952?

12. Grounds of Challenge – Legality of the recovery affected from Respondent No. 5, an Ex.

Sarpanch, in view of Section 105(4) of the Punjab Gram Panchayat Act, 1952?Section 105(4) of

the Punjab Gram Panchayat Act, 1952







907

554


Article 227; Haryana Panchayati Raj Act, 1994 - Section 53(2), Haryana Panchayati Raj Act,

1994 - Section 53(5), Section 105(4) of the Punjab Gram Panchayat Act, 1952


The facts of the case are that election to the Gram Panchayat was held in September, 1983. In the

said election, fresh Gram Panchayat was constituted and Tarsem Singh was elected as a

Sarpanch. Earlier to the said election, Respondent No. 5-Sher Singh was the Sarpanch of the

Gram Panchayat and ceased to be so in September, 1983. There was an averment in the writ

petition that the Gram Panchayat owned 135 kanals and 13 marlas of land in village Garhi Ajit

Singh. The said land remained vacant and was not given on lease for cultivation which resulted

into loss to the Gram Panchayat. It was further averred that there was omission on the part of Ex.

Sarpanch, Respondent No. 5. Thereafter a complaint was filed against respondent No. 5 and

matter was inquired into. A Notice was issued for explaining the irregularities and wrongful

expenditure made by him during his tenure. Respondent No. 4-Block Development and

Panchayat Officer passed assessment order whereby an amount was assessed as loss to the Gram

Panchayat and respondent No. 5 was held liable to pay the same. However, vide impugned

order, respondent No. 3 held that respondent No. 5 was not liable for the aforesaid loss and

rather the block officers were responsible for the same. Thereafter, vide impugned letter

respondent No. 2 ordered consignment of the complaint filed against respondent No. 5 on the

ground that charges were not proved.


The court observed that a perusal of Section 105(4) of the 1952 Act reveals that it is pari materia

with Sections 53(2) and (5) of the Haryana Panchayati Raj Act, 1994.

The court thus held that since respondent No. 5 ceased to be Sarpanch in September, 1983 and

notice for commission of alleged irregularities and wrongful expenditure was in 1987 i.e. after

lapse of more than one year from his ceasing to be Sarpanch, therefore, the said notice could not

be sustained and the impugned orders had rightly been passed by the authorities. In view of



908

555

above there weren’t any illegality or perversity in the impugned orders and hence the writ



A conjoint reading of Sections 53(2) & (5) of the Haryana Panchayati Raj Act, 1994 makes it

absolutely clear that Block Development and Panchayat Officer is the competent authority to

recover from any Sarpanch or Panch, as the case may be, any loss/waste or misappropriation of

the panchayat funds after giving adequate opportunity to explain and further in view of the non-

obstantive clause existing in Section 53(5), no person can be called upon to explain such alleged

loss after the expiry of six years from the occurrence of the loss etc. or after expiry of two years

from his ceasing to be a Sarpanch, whichever is earlier.




909

556

STATE OF RAJASTHAN

I. Mewa Ram v State of Rajasthan and Ors.

1. State – Rajasthan

2. Court – High Court


4. Name of the Bench - - B.J. Shethna, J.

5. Case Number – Civil Writ Petn. No. 1392 of 1998

6. Name of the case - Mewa Ram v State of Rajasthan and Ors.


8. Appellant – Mewa Ram

9. Respondent – State of Rajasthan and Ors.

10. Case Type – CWP


Whether Rajasthan State Road Transport Corporation can be a local authority and a full time

worker working with the Corporation incurs any disqualification for the appointment at the post

of sarpanch, under the Rajasthan Panchayati Raj Act, 1994 ?


If Rajasthan State Road Transport Corporation can be a local authority and a full time worker

working with the Corporation incurs any disqualification for the appointment at the post of

sarpanch, under the Rajasthan Panchayati Raj Act, 1994



910

557


• Calcutta State Transport Corporation v. Commr. of Income Tax, West Bengal, AIR 1996

SC 1316;

• Valjlbhal Muljibhai Sonejl v. The State of Bombay (now Gujarat), AIR 1963 SC 1890




Rajasthan Panchayati Raj Act, 1994 - Section 19, Rajasthan Panchayati Raj Act, 1994 – Section

39; General Clauses Act - Section 32(43), General Clauses Act - Section 39(2).


The Petitioner was working as Conductor with the Corporation. While working as Conductor

with the Corporation, he contested the election for the post of Sarpanch, Gram Panchayat Dabra

successfully and was elected as Sarpanch. Respondent No. 2 issued a notice to the petitioner

stating that he was disqualified to hold the office of Sarpanch under Section 19(b) of the

Rajasthan Panchayati Raj Act, 1994. The same was replied by the petitioner and in the reply

also, the Petitioner did not dispute the fact of working as Conductor with the Corporation.

Thereafter by an order respondent No. 2 declared the petitioner to be disqualified to hold the

office of Sarpanch and accordingly, declared his seat vacant. Aggrieved by that order the

petitioner filed the present petition under Article 226 of the Constitution.


Section 19 of the Rajasthan Panchayati Raj Act provides qualifications for election as a Panch or

a member and Panch includes Sarpanch. Section 19(b) of the above Act clearly provides that if a

Panch or Sarpanch or a Member of a Panchayat holds a salaried whole time or part time

appointment under a local authority, then he incurs disqualification. Section 39 of the above Act

refers to cessation of membership subject to the provisions of Section 40 of the above Act and

one of the requirements is that a person is or becomes subject to any of the disqualifications



911

558

specified in Section 19 of the above Act. Under Section 39(2) of the above Act, whenever it is

made to appear to the competent authority that a member has become ineligible to continue to be

a member for any of the reasons specified in Sub-section (1), the competent authority may after

giving him an opportunity of being heard, declare him to have become so ineligible and

thereupon he shall have to vacate his office as member. However, it is provided that no such

opportunity shall be given if such member has under Section 40 of the above act, been

determined by the Judge to be or to have become disqualified under Section 19 of the act.

Section 32(e) of the above act provides that the Sarpanch must exercise administrative

supervision and control over the work of the staff of the Panchayat and the officers and

employees whose services may be placed at the disposal of the Panchayat by any other authority.

/it was remarked by the court that if a person was working full time with some other institution

ten it is difficult for him to discharge the duties of Sarpanch. The Petition was dismissed.


Only those persons can be eligible to contest the post of Sarpanch who are not serving either part

time or full time with any other institution. If they are, then they should be immediately

disqualified because it would be against the interest of the public.




912

559

II. Bhaiya Ram and Ors. v .State of Rajasthan and Ors.



3. Bench – Single Judge Benc

4. Name of the Bench - B.S. Chauhan, J.

5. Case Number – Civil Writ Petn. No. 827 of 2000

6. Name of the case - Bhaiya Ram and Ors. v .State of Rajasthan and Ors.


8. Appellant – Bhaiya Ram and Ors.



11. Main Law Points Involved – Whether disqualifications under Section l9 (gg) of the

Rajasthan Panchayati Raj Act, 1994 would be attracted when cognizance of the offence had

taken place but the charges were not yet framed?

12. Case Challenge – Scope of disqualifications under Section l9 (gg) of the Rajasthan

Panchayati Raj Act, 1994 when cognizance of the offence had taken place but the charges were

not yet framed


• K. Venkatachalam v. A. Swamickan, AIR 1999 SC 1723;

• Dwarka Nath v. Income Tax Officer, AIR 1966 SC 81;

• T.C. Basappa v. T. Nagappa, AIR 1954 SC 440;



913

560

• P.J. Irani v. State of Madras, AIR 1961 SC 1731;

• Shri Vallabh Glass Works Ltd. v. Union of India, AIR 1984 SC 971;

• Mewa Singh v. Shiromani Gurdwara Prabandhak Committee, (1999) 2 SCC 60, AIR

1999 SC 688;

• Emperor v. Khwaja Nazir Ahmed, AIR 1945 PC 18;

• Ratilal Bhanji Mithani v. State of Maharashtra, AIR 1979 SC 94;

• V.C. Shukla v. State, AIR 1980 SC 962;

• Union of India v. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340;

• Common Cause, a Registered Society v. Union of India, AIR 1997 SC 1539;

• M.V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd., AIR 1993 SC 1014;

• Institute of Chartered Accountants of India v. Price Water-house, (1997) 6 SCC 312, AIR

1998 SC 74;

• Martin Burn Ltd. v. Corporation of Calcutta, AIR 1966 SC 529;

• Patel Chunibhai Dejibhai v. Narayanrao K. Jambekar, AIR 1965 SC 1457;

• Sultana Begum v. Prem Chand Jain, (1997) 1 SCC 373, AIR 1997 SC 1006;

• State of Bihar v. Bihar Distillery Ltd., AIR 1997 SC 1511;

• South Central Railway Employees Co-operative Credit Society Employees' Union,

Secunderabad v. Registrar of Co-operative Societies, (1998) 2 SCC 580, AIR 1998 SC

703;

• Subash Chander Sharma v. State of Punjab, (1999) 5 SCC 171, AIR 1999 SC 2076;

• Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718;

• Sachida Nand Singh v. State of Bihar, (1998) 2 SCC 493, AIR 1998 SC 1121;



914

561

• Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456, AIR 1998 SC 1926;

• Arul Nadar v. Authorised Officer, Land Reforms, (1998) 7 SCC 157, AIR 1998SC 3288;

• Rambul Singh v. Board of Revenue for Rajasthan, AIR 1957 Raj. 19;

• Jairam Das v. Regional Transport, AIR 1957 Raj, 312;

• Salomon v. Salomon & Co. Ltd., 1897 AC 22;

• Cox v. Hakes, (1890) 15 AC 506;

• Government of Rajasthan v. Sangram Singh, AIR 1962 Raj. 43;

• Sales Tax Officer, Banaras v. Kanhaiya Lal Makund Lal Saraf, AIR 1959 SC 135;

• Bharat General and Seeds Stores v. Mahendra Singh, AIR 1992 Raj 189;

• Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907;

• Corporation of City of Nagpur v. Its Employees, AIR 1960 SC 675;

• Manmohan Das Shah v. Bishun Das, AIR 1967 SC 643;

• Life Insurance Corporation of India v. D.J. Bahadur, AIR 1980 SC 2181;

• R.S. Nayak v. A.R. Antuley, AIR 1984 SC 684;

• Idul Hasan v. Rajendra Kumar Jain, AIR 1990 SC 678;

• Kamta Prasad Aggarwal v. Executive Engineer, Ballabhgarh, AIR 1974 SC 685;

• Green v. Premier Glynrhonwy Slate Co. Ltd., (1928) 1 KB 561 (565);

• Hyderabad Asbestos Cement Products v. Union of India, (2000) 1 SCC 426, AIR 2000

SC 314;

• Hakim Ali v. Board of Revenue, AIR 1991 SC 972;



915

562

• State of Maharashtra v. Nanded- Parbhani Z.L.B.M.V. Operator Sangh, (2000) 2 SCC

69, AIR 2000 SC 725;

• Emperor v. Benoari Lal Sharma, AIR 1945 PC 48;

• Mool Chand v. Kedar, (2000) 2 SCC 528, AIR 2000 SC 745;

• Raees Ahmad v. State of U.P., (2000) 1 SCC 432, AIR 2000 SC 583;

• Rewat Dan v. State of Rajasthan, 1975 Raj LW 116;

• Rameshwari Devi Mewara v. State of Rajasthan, AIR 1999 Rajasthan 47;

• Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1966 SC 1678;

• Hareram Satpathy v. Tikaram Agarwal, AIR 1978 SC 1568;

• Anil Saran v. State of Bihar, AIR 1969 SC 204

14. Area of Dispute Name –Election

15. Area of Dispute Category- Eligibility of Candidiates

16. Provisions of Law Involved- Rajasthan Panchayati Raj Act, 1994 - Section 19,

Rajasthan Panchayati Raj Act, 1994 – Section 43; Constitution of India - Article 226


The writ petition was filed for setting aside the election of respondent No. 2 as the Sarpanch of

Gram Panchayat, Panchu, tehsil Nokha, district Bikaner, as he stood disqualified even prior to

the contesting of the election, under Section 19(gg) of the Panchayati Raj Act, 1994 inserted by

the Ordinance issued on 25-12- 1997. The facts and circumstances that gave rise to this case are

that the election of Gram Panchayat, Panchu was held and respondent No. 2 Mr. Jetha Ram was

elected as the Sarpanch. The instant writ petition was filed on the ground that under Section 19

(gg) of the Rajasthan Panchayati Raj Act, 1994, respondent No. 2 stood disqualified to become a

candidate in the election for the reason that cognizance of the offences had been taken and the



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563

same was punishable with imprisonment for five years or more, therefore, the Court must

declare him disqualified and restrain him to work as Sarpanch.


The Court held that in a democratic set-up, a duly elected candidate should not be removed

unless he reached/incurred the disqualification as provided under the Statute as it would offend

the will of the electorates. Removal of the duly elected member should not be compared with

removal of State employees. Therefore, while construing the provisions of a Statute, it is not

permissible for the Court to add to or subtract from the statutory provision. The said provisions

clearly provided that a person would stand disqualified to contest the Election if he was under

trial wherein the cognizance of offence had been taken and the charges had been framed against

him for any offence punishable with imprisonment for five years or more. Therefore, unless

charges were framed against the Office bearer, he could not be subjected to disqualification.

Hence the petition was dismissed.


As the legislature under Section 19 of Rajasthan Panchayati Raj Act 1994 has purposely

provided, that disqualification would occur provided the charges had been framed after taking

the cognizance, mere taking cognizance would not render the candidate disqualified.

20. Obiter Dicta-

In case the language of a Statute is unambiguous, there can be no need to interpret it or examine

the intent or object of the Act and the Courts must give effect to it unless it leads to an absurdity

or injustice.



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564

III. Manak Chand Nogia v. The State of Rajasthan and Ors.




4. Name of the Bench – Mohammad Rafiq, J.

5. Case Number – S.B. Civil Writ Petition No. 11316/2015

6. Name of the case – Manak Chand Nogia v The State of Rajasthan and Ors.


8. Appellant – Manak Chand Nogi

9. Respondent – The State of Rajasthan and Ors.


11. Main Law Points Involved - Whether the rejection of nomination filed by the petitioner

could be challenged through a writ petition?

12. Grounds of Challenge– Legality of challenging the rejection of nomination filed by the

petitioner through a writ petition


• Sandhya Bhatnagar (Miss.) vs. State of Rajasthan and Ors. RLW 2004 (2) Raj 974, 2003

(4) WLC 295;

• N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency and Ors. 1952 AIR 64,

1952 SCR 218;

• Nanhoo Mal and Ors. vs. Hira Mal and Ors. 1975 AIR 2140, 1976 SCR (1) 809;



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565

• Mohinder Singh Gill and Anr. vs. The Chief Election Commissioner, New Delhi and Ors.

1978 AIR 851, 1978 SCR (3) 272;

• S.T. Muthusami vs. K. Natarajan and Ors. 1988 AIR 616, 1988 SCR (2) 759

• Jaspal Singh Arora vs. State of M.P. and Ors. (1998) 9 SCC 594;

• C. Narayanaswamy vs. C.K. Jaffer Sharief and Ors. [1994 Supp. (3) SCC 170].;

• Gajanan Krishnaji Bapat and another vs. Dattaji Raghobaji Meghe and others 1995 AIR

2284, 1995 SCC (5) 347



16. Provisions of Law Involved- Constitution Of India - Article 226, Article 243O, Article

243ZG, and Article 329(b).


The facts of the case are that Respondent No. 2 issued a public notice of election under Rule 11

of the Rajasthan Municipalities (Election) Rules, 1994 for election to the Municipal Council,

Jobner, Ward No. 1 to 15. As per the said notification, last date of submission of nomination

forms was 05.08.2015 and 06.08.2015 was fixed for scrutiny of nomination forms and the

election poll was scheduled to be held on 17.08.2015. The petitioner, as per Rule 12 of the Rules

of 1994 and in the requisite form, submitted his candidature before Respondent No. 3 on

05.08.2015 along with his Prathma Certificate issued by Hindi Sahitya Sammelan Allahabad

(Hindi University). However, Respondent No. 3, on 06.08.2015, illegally and arbitrarily rejected

nomination form of the petitioner. Hence, the present writ petition was filed by the petitioner.


The question whether the qualification possessed by the petitioner, i.e. Prathma, was equivalent

to Matriculation is a question of fact which could not be gone into by the Court in the writ

jurisdiction. It is trite law that right to elect or to be elected or to challenge an election, is neither

a fundamental right nor a common law right but a statutory right and therefore disputes relating



919

566

to such right would be regulated by the conditions prescribed in the enactment in which such

right is created. Thus the court concluded that it would not interfere in this writ petition as the

process of election had already commenced. However, it would be open for the petitioner to

assail the ground of rejection of his nomination to further contest the future elections, if he was

able to satisfy the returning officer about his eligibility on the premise that the qualification of

Prathma held by him was equivalent to matriculation. Thus, the Writ petition was dismissed and

the corresponding stay application was also dismissed.


In view of the bar contained in Article 243ZG of the Constitution of India, no interference can be

made by this Court as the process of election has already been started.

20. Obiter Dicta-

The right to elect or to be elected or to challenge an election, is neither a fundamental right nor a

common law right, but a statutory right.



920

567

IV. Kartar Singh v. State of Rajasthan and Ors.




4. Name of the Bench - B.S. Chauhan, J.

5. Case Number – Civil Writ Petition No. 912 of 2000

6. Name of the case - Kartar Singh v State of Rajasthan and Ors.


8. Appellant – Kartar Singh



11. Main Law Points Involved - Whether the order of suspension could be held to be

arbitrary/ unreasonable under the facts and circumstances of the case?

12. Grounds of Challenge – Legality of the order of suspension


• Radhey Shyam Sharma v. State of Rajasthan, AIR 1985 Raj 65;

• Prem Prakash v. State of Rajasthan, 1993 (1) WLC 567;

• Nauratan Mal Tak v. State of Rajasthan, 1999 (2) WLC 186;

• Bajrang Lal v. State of Rajasthan, 1981 WLN 32, AIR 1981 Raj 298;

• Nand Lal v. State of Rajasthan, 1996 (2) WLC 497, 1996 AIHC 1818;



921

568

• Smt. Rameshwari Devi Mewara v. State of Rajasthan, AIR 1999 Raj 47;

• Chimna Ram v. State of Rajasthan; Jagdish Singh v. State of Rajasthan, 1999 (3) RLW

1703;

• Accountant General v. S. Doraiswamy, AIR 1981 SC 783, 1981 Lab IC 184;

• R.S. Dass v. Union of India, AIR 1987 SC 593, 1987 Lab IC 476;

• Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101, 1991 Lab

IC 91;

• Government of Maharashtra v. Krishanchand Khushalchand Jagtiani, AIR 1996 SC

1910, 1996 Cri LJ 2510;

• Shiv Sagar Tiwari v. Union of India, AIR 1997 SC 2725;

• State of Bihar v. Subhash Singh, AIR 1997 SC 1390;

• Jan Mohammed v. State of Rajasthan, 1992 (2) WLC 463;

• Bhura Lal v. State of Rajasthan, 1988 (1) RLR 945;

• Chandra Prakash v. State of Rajasthan, AIR 1999 Raj 349;

• Mohan Lal v. State of Rajasthan, 1963 RLW 209;

• Ugamjee Modi v. State of Rajasthan, 1962 RLW 184

14. Area of Dispute Name – Removal and No-confidence motion

15. Area of Dispute Category-Inappropriate conduct

16. Provisions of Law Involved- Rajasthan Municipalities Act, 1959 - Section 63


The facts and circumstances that gave rise to the case was that the petitioner was elected as a

Member and subsequently the Chairman of the Municipal Board, Gulabpura in August, 1995. He



922

569

was issued a show cause notice in the year1999 under Section 63 of the Rajasthan Municipalities

Act, 1959 calling upon him to furnish his explanation with respect to allegations mentioned

therein. The said allegations revealed that there was a gross negligence on the part of the

petitioner in collecting the octroi on certain material at the prescribed rate; secondly, misuse

of funds in making payment of telephone bills; and thirdly, misuse of funds in repairing of the

official car. Initially, the State Government had taken a decision to hold an inquiry and as there

was an apprehension that petitioner may affect the fate of the inquiry, his suspension was found

to be necessary. Petitioner's representation for withdrawal of suspension order was rejected vide

an order on the ground that as there were serious complaints against the petitioner of misuse

of funds and favouring particular persons in charging the lesser rate of octroi etc., a preliminary

enquiry was held and prima facie the Government was satisfied that the Chairman and the

Executive Officer had committed the misconduct and both of them were given show cause

notice to furnish their explanation and after considering their reply, the Government took a

decision to hold an inquiry under Section 63 of the Act, to refer the matter for judicial inquiry

and to put the Chairman under suspension. It was, also, decided to proceed against the Executive

Officer under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal)

Rules, 1958. The present petition is against the order rejecting withdrawal of suspension order.


Undoubtedly the suspension of a public representative is a matter of serious concern because the

duly elected person loses his status during the suspension period and the loss is of such an

immense nature that it cannot be compensated in terms of money or the harm cannot be undone

by any other means. Therefore, the suspension order should be passed with great care and

circumspection. In the instant case, petitioner had been given a show cause notice to explain

certain allegations against him; he filed the reply which was considered by the Government and

the Government took a final decision to hold an inquiry. The Enquiry Officer was appointed and

he was sent the copy of the charges to be inquired into by him. Therefore, it could not be held

that the Government was not competent to pass the order of suspension at that point of time.

There were three allegations against the petitioner and all these matters had to be considered by

the Enquiry Officer and these issues could not be decided at the threshold in writ jurisdiction. It

was a case where allegations made against the petitioner are of a grave nature and may amount



923

570

to flagrant abuse of power, if proved. Thus, in the facts and circumstances of the case the court

declined to interfere with the suspension order. The petition was dismissed and the respondents

were directed to conclude the inquiry expeditiously.


If the suspension order of the petitioner was recalled/ quashed the possibility of his influencing

the witnesses and tampering with the record could not be ruled out.

20. Obiter Dicta-

The law presumes and the Court must also presume until the contrary is established that the

official acts will be done fairly and objectively as the authorities under the Statute are presumed

to, and expected to, act consistent with the public interest and the interest of law.



924

571

V. Laxman Meena Vs. State of Rajasthan and Anr.




4. Name of the Bench - Gyan Sudha Misra, J

5. Case Number – SB Civil Writ Petn. No. 5647/97

6. Name of the case - Laxman Meena Vs. State of Rajasthan and Anr.


8. Appellant – Laxman Meena

9. Respondent – State of Rajasthan and Anr.


11. Main Law Points Involved - Whether a No Confidence Motion against an elected

Sarpanch can be allowed to be initiated and proceeded with on the plea that even though the

procedure for such action has not been followed, the same should not be interfered with, if

ultimately the motion has been carried through?

12. Grounds of Challenge – Legality of initiating a No Confidence Motion against an

elected Sarpanch even though the procedure for such action has not been followed, the same

should not be interfered with, if ultimately the motion has been carried through


• State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358, 1964 (1) Cri LJ 263;

• Pratap Singh v. Shrikrishan Gupta, AIR 1956 SC 140;

• Mohan Lal Tripati v. District Magistrate, AIR 1993 SC 2040, 1993 All LJ 994;



925

572

• Mahesh Chandra v. Tara Chand, AIR 1958 Allahabad 374

14. Area of Dispute Name – Removal and No confidence motion


16. Provisions of Law Involved- Rajasthan Panchayat Raj Act, 1994 - Section 37;

Representation of Peoples Act, 1951


The petitioner Laxman Meena who had been elected as Sarpanch of Gram Panchayat in the

District Sawai Madhopur had challenged the initiation of a proceeding by the Chief Executive

Officer, Zila Parishad, Sawai Madhopur for passing No Confidence Motion against the petitioner

for which a notice was issued convening a meeting for the said purpose.The grounds of

challenge to the said proceeding were based on Section 37 of the Rajasthan Panchayat Raj Act,

1994 read with Rule 21 of the Rajasthan Panchayat Raj Rules. 1996 and the principal contention

in this regard was that the meeting for the said purpose should not be allowed to be conducted

since the very initiation of the proceeding has been done violating the mandatory procedure

enumerated in the aforesaid provisions of the Act. It is pertinent to mention here that the

petitioner was elected as Sarpanch in the Gram Panchayat directly by the electorates. In course

of discharge of his duties he complained against two ward Panchas that they had crossed the

prescribed limit of two children even after the cutoff date laid down in the Act of 1994 as a

result of which they had disqualified themselves to continue as Ward Panch. He, therefore,

recommended for enquiry into the matter. This act of the petitioner against the Ward Panchas

triggered, which gave them a cause to initiate a proceeding for passing No Confidence Motion

against the petitioner and infact a proceeding was initiated when an application for this purpose

was submitted by those two Ward Panchas to the Chief Executive Officer.


Detailed provisions had been laid down under the Rajasthan Panchayati Raj Act, 1994 where

specific provisions giving out minute details regarding the method and manner of initiation and

passing of the No Confidence Motion had been meticulously laid down. The situation in this

case was not regarding interpretation of a particular word but the specific procedure laid down



926

573

for passing the No Confidence Motion which was sought to be ignored by the respondents. After

a motion has been properly made and passed by a body competent to pass, it becomes of vital

importance that effect should be given to the motion and mere procedural errors such as errors in

communication etc. should not have the effect of setting it at naught the duly recorded view of

the statutory majority. In view of Section 37 of the Act of 1994 and the Rules of 1996, the

membership of such initiators of the motion against the petitioner themselves were questionable

and hence it was difficult to infer how the motion could be carried through at the instance of

those members whose qualifications were itself under question. The "No Confidence Motion"

therefore also appeared to be malicious and under this background, it was all the more necessary

that before initiating such proceeding it should have been signed by the required number of

members. Thus the No Confidence Motion could not be treated as mere technicality having no

bearing on the matter so as to brush it aside as minor lapses having no vital importance which

the Court ought not to reckon seriously. The No Confidence Motion, therefore, was struck down

as illegal and void and accordingly the No Confidence Motion initiated or passed against the

petitioner was quashed. The writ petition was thus allowed.


The very initiation of the proceeding suffered from violation prescribed under Section 37 of the

Rajasthan Panchayat Raj Act of 1994 and the Rules of 1996.

20. Obiter Dicta-

The No Confidence Motion in the recent years has become more of a sport than a serious

business as is evident from the fact that not a day passes where cases of No Confidence Motion

is not brought before this Court which has compelled this Court to infer that the provision of

passing No Confidence Motion has become more of a weapon to settle personal scores than to

treat an ailment against an erring member.



927

574

VI. Asu Ram and Anr. v .State and Ors.




4. Name of the Bench - Rajesh Balia, J.

5. Case Number – S.B. Civil Writ Petition No. 1422 of 2001

6. Name of the case - Asu Ram and Anr. v .State and Ors.


8. Appellant – Asu Ram and Anr

9. Respondent – State and Ors.


11. Main Law Points Involved – Whether an order passed by the Divisional Commissioner

declaring the seat of Sarpanch as vacant for want of qualification, could be stayed by the State

Government?

12. Case Challenge – Legality of staying of the order passed by the Divisional

Commissioner declaring the seat of Sarpanch as vacant for want of qualification, by the State

Government

13. Reference taken from the cases – None



16. Provisions of Law Involved- Rajasthan Panchayati Raj Act, 1994 - Sections 97, 39;

Rajasthan Panchayati Raj Act, 1994 - Sections 19(1)



928

575


In this case a petition was filed by two petitioners; one Asu Ram and other Kheta Ram

challenging the order passed by State Govt. in purported exercise of its power Under Section 97

of the Rajasthan Panchayati Raj Act, 1994 directing stay of the operation of order passed by

Divisional Commissioner, Bikaner declaring the respondent No.3, the Sarpanch of said Gram

Panchayat, by holding that he suffers from disqualification under Section 19(1) of the Rajasthan

Panchayati Raj Act, 1994 and declaring the office of Sarpanch to be vacant in terms of Section

39 of the said Act.


The court observed that it was apparent from records that the order passed by the Divisional

Commissioner fell short of the requirement of a reasoned order affecting the rights of respondent

No.3 adversely. The minimum requirement of such an order, apart from other requirement of

principles of natural justice was that the order must inform for itself the reasons for the making

of the order. The petitioner had not been apprised of the findings given by the Asstt. Collector

nor an opportunity to make his submissions in respect of such findings of enquiry officer by the

Divisional Commissioner, who is a Competent Authority under Section 39 of the Rajasthan

Panchayati Raj Act, 1994 to make an order, was given. In this view of the matter, the order being

apparently, in breach of principles of natural justice affecting rights of respondent No.3 could

not be sustained. Thus the order of the State Government was quashed for want of jurisdiction

to revise the orders of the Divisional Commissioner. The order passed by the Divisional

Commissioner was quashed being made in breach of principles of natural justice. The

Competent Authority was left free to make appropriate order after holding an enquiry in

accordance with law and giving an adequate opportunity of hearing to the respondent No.3

before making any order in that respect.


It is inherent into the scheme of Section 39 of Rajasthan Panchayat Raj Act, that principles of

natural justice are to be adhered to by the Competent Authority before he makes an order of such

far reaching consequences



929

576

20. Obiter Dicta-

Any proceeding relating to Panchayati Raj institution has not been made subject matter of the

revisional powers of the State under Section 97 of the Rajasthan Panchayat Raj Act, 1994 but

only the proceedings of the Panchayati Raj Institution itself that has been made subject matter of

revision Under Section 97 of the Act.



930

577

VII. Daya Ram Bhadu v. State of Rajasthan &Anr.



3. Bench – Division Benc

4. Name of the Bench - Dinesh Maheshwari and Arun Bhansali, JJ.

5. Case Number – D.B. Civil Special Appeal (W) No. 19/2005

6. Name of the case - Daya Ram Bhadu v. State of Rajasthan &Anr.


8. Appellant – Daya Ram Bhadu

9. Respondent – State of Rajasthan &Anr.

10. Case Type – Civil Special Appeal (W)

11. Main Law Points Involved – Whether the order passed by the Single Judge dismissing

the writ petition of the petitioner-appellant was justified?

12. Grounds of Challenge – If the order passed by the Single Judge dismissing the writ

petition of the petitioner-appellant was justified

13. Reference taken from the cases – Nil

14. Area of Dispute Name – Personnel System

15. Area of Dispute Category-Appointment Related

16. Provisions of Law Involved—Rajasthan Panchayati Raj Rules, 1994




931

578

The brief facts of the case are that the Single Judge dismissed the Writ Petition filed by

Petitioner-Appellant for his claim for absorption in services of the Panchayati Raj Institution and

on his grievance against the order issued by Chief Executive Officer, Zila Parishad

Hanumangarh, directing termination of his ad hoc services in the Gram Panchayat. Hence, the

present appeal had been preferred against the above orders.


It was held by the court that the certificates filed by Appellant with his rejoinder were hardly of

any relevance and they could not be accepted as primary evidence on the nature of his

engagement. Engagement of Petitioner-Appellant having essentially been as Phatak Lekhak, his

claim for regularization on the strength of allegation that he worked as Assistant Secretary could

not be accepted .Appellant was also not in a position to assert that he answered all the

requirements of the Scheme of regularization/absorption as approved by the Court. Apart from

the fact that Appellant's engagement had only been as Phatak Lekhak, he was even otherwise not

answering to the requirement of having worked for last continuous 5 years as Assistant

Secretary. For a long period there had not been any order of his engagement. According to

Appellant's own averments in Petition, he allegedly worked during this period on honorary basis

without receiving any remuneration. Hence the engagement of the Appellant could neither be

said to be continuous nor specifically on post of Assistant Secretary. Even if the aspects relating

to actual nature of engagement were left aside, it was evident that the Appellant was not

answering the very basic requirements of the said Scheme of absorption. Hence the claim of the

Appellant for regularization was not accepted and the appeal was dismissed.


The report drawn by the Chief Executive Officer after a thorough examination of the record

cannot be ignored simply on the contention of the petitioner-appellant that he was not called

upon to explain since the engagement of the Appellant as Assistant Secretary was not continuous

or specific to the post and also the appellant had failed to show if anything was incorrect in the

report on the material factual aspects.



932

579

20. Obiter Dicta-

The directions in Om Prakash Sharma & Ors. Vs. State of Rajasthan & Anr. had been

specifically for the persons who were working as Assistant Secretaries in different Gram

Panchayats. The Scheme for absorption/regularisation of the Assistant Secretaries working in

various Panchayats as submitted before the Court was approved, but as one time exception and

with modifications,



933

580

VIII. Smt. Ummed Kanwar v. Prabhu Singh and Ors.




4. Name of the Bench - Arun Kumar Mishra and N.K. Jain-I, J.

5. Case Number – D.B. Special Appeal (Writ) No. 856 of 2012

6. Name of the case - Smt. Ummed Kanwar v. Prabhu Singh and Ors.


8. Appellant – Smt. Ummed Kanwar

9. Respondent – Prabhu Singh and Ors

10. Case Type – Special Appeal (Writ)


Whether in case of the election of defendant being declared null and void; the election petitioner

would be entitled to get himself declared as the elected Sarpanch?


Legality of the petitioner getting himself declared the elected Sarpanch in case of the election of

defendant being declared null and void


14. Area of Dispute Name– Election

15. Area of Dispute Category- Eligibility of Candidiate



934

581


Constitution of India - Article 226, Constitution of India - Article 227; Rajasthan Panchayati Raj

Act, 1994 - Section 19(1), Rajasthan Panchayati Raj Act, 1994 - Section 43


Election for the post of Sarpanch of Gram Panchayat, Tidoki Badi, Panchayat Samiti,

Laxmangarh, District Sikar took place wherein Smt. Ummed Katiwar was declared as elected

Sarpanch. Shri Prabhu Singh secured second position in the election. Shri Prabhu Singh i.e. the

election petitioner filed an election petition under Rule 80 of the Rajasthan Panchayati

Raj (Election) Rules, 1994 read with Section 43 of the Rajasthan Panchayati Raj Act, 1994

challenging the election of Smt. Ummed Kanwar in the Court of Civil Judge (Sr. Division),

Sikar. The main ground of the election petition was that Smt. Ummed Kanwar was already

having two children and she gave birth to two more children after the cut off date of 27th

November, 1995. As she was having more than two children on the date of nomination, the

election Tribuna held that she was disqualified under Section 19(1) of the Act of 1994 for

contesting the election of Sarpanch and Prabhu Singh was elected Sarpanch. Consequently, the

election petition was allowed. Being aggrieved by the order passed by the election Tribunal, the

petitioner/appellant Smt. Ummed Kanwar filed a Civil Writ Petition before the single Bench.

The Learned single Judge vide its order allowed the writ petition in part and while upholding the

order of the Tribunal setting aside the election of the appellant, set aside the other part of the

order of the Tribunal, whereby election petitioner Prabhu Singh was declared as elected

Sarpanch. Being aggrieved with the order of single Bench, the election petitioner Prabhu Singh

as well as appellant Smt. Ummed Kanwar both preferred two intra-Court appeals.


The learned election Tribunal had specifically recorded a finding that two children were born to

Smt. Ummed Kanwar after the cut off date and since she was having more than two children, she

was disqualified under Section 19(1) of the Act. The single judge did not interfere with this

finding as it was a question of fact .Thus the court was of the view that there was no illegality or

perversity in the finding of single Bench as well as election tribunal in respect of the issue which

may call for any interference by the Court. It was further directed that Fresh election should take



935

582

place for village Panchayat, Tidoki Badi, Panchayat Samiti, Laxmangarh, District, Sikar; in

accordance with the provisions of law. With this both the special appeals were disposed off.


The finding of fact recorded by election Tribunal could not have been interfered with by single

Bench while exercising powers under Article 226/227 of the Constitution.




936

583

IX. Dhanraj Meena v. State of Rajasthan




4. Name of the Bench -Mohammad Rafiq, J.


6. Name of the case - Dhanraj Meena v. State of Rajasthan


8. Appellant – Dhanraj Meena

9. Respondent – State of Rajasthan


11. Main Law Points Involved - Whether the election of the candidate was liable to be set

aside under Sec. 19(1) of the Rajasthan Panchayati Raj Act, 1994 if he had three (more than two)

children; even though he had given one in adoption?

12. Case Challenge – Eligibility of the candidate under Sec. 19(1) of the Rajasthan

Panchayati Raj Act, 1994 if he had three (more than two) children; even though he had given

one in adoption

13. Reference taken from the cases – Javed and Ors. vs. State of Haryana and Ors. 2003 (8)

SCC 369



16. Provisions of Law Involved- Rajasthan Panchayati Raj Act, 1994 - Section 19(1)



937

584


The present writ petition was filed, challenging the judgment of the District Judge whereby the

election petition of respondent No. 5 had been allowed and the election of the petitioner had

been set-aside on the ground that the petitioner having incurred disqualification under Sec. 19(1)

of the Rajasthan Panchayati Raj Act, 1994 having had more than two child born into his family

after the cut-off date i.e. 27.11.1995, was rendered disqualified to contest the election. The

contention of the petitioner was that the learned District Judge erred in law in not appreciating

that though eldest daughter of petitioner was born to his wife in 1994 before the cut-off date but

she had been given in adoption on 11.04.1995 and, therefore, birth of two more children

thereafter would not make him ineligible to contest the election because number of children born

to him after the cut-off date would in any case remain only two. The respondents however

opposed the writ petition and argued that the judgment passed by the learned District Judge did

not suffer from any material irregularity so as to call for interference of this Court and argued

that the fact that petitioner had three children is not denied and merely because first of his

children was given in adoption would not obliterate the fact that he in fact he had three children.


The court observed that the perusal of the judgment of the Hon’ble Supreme Court on this point

would show that merely because the couple had parted with one child by giving the child in

adoption, the disqualification does not come to an end. While interpreting the scope of

disqualification, the Courts have to keep in view the evil sought to be cured and purpose sought

to be achieved by the enactment. If the person sought to be disqualified was responsible for

giving birth to more children than two, who are living, then merely because one or more of them,

are given in adoption, the disqualification would not be wiped out. Hence the Petitioner was

disqualified as he had more than two children which stood contrary to the rules. In view of the

above, the court did not find any error in the judgment of the learned District Judge and the writ

petition was therefore dismissed.




938

585

In view of the judgment of the Supreme Court in Javed and Ors. v. State of Haryana and Ors.,

AIR 2003 SC 3057, merely because couple had parted with one child by giving the child in

adoption, the disqualification does not come to an end.

20. Obiter Dicta- While interpreting the scope of disqualification, the Courts have to keep in

view the evil sought to be cured and purpose sought to be achieved by the enactment.



939

586

X. Ram Niwas v. State of Rajasthan and Anr.




4. Name of the Bench - P.C. Tatia, J.

5. Case Number – S.B. Civil Writ Petition No. 123 of 2005

6. Name of the case - Ram Niwas v. State of Rajasthan and Anr.


8. Appellant – Ram Niwas

9. Respondent – State of Rajasthan and Anr.



Whether the disqualification under section 19 of the Rajasthan Panchayati Raj Act, 1994 would

be attracted to a person who did not have any children from his subsisting marriage but had more

than two children in total from the earlier marriages?

12. Case Challenge –

Eligibility of the candidate under section 19 of the Rajasthan Panchayati Raj Act, 1994 when

the candidate did not have any children from his subsisting marriage but had more than two

children in total from the earlier marriages


• Praga Ram v. Civil Judge (Sr.Div.), Jalore and Ors., S.B. Civil Writ-Petition No.

1105/1999;



940

587

• Laxman Das v. Deoji Mal and Ors., 2000(4) WLC (Raj.) 297 6;

• Bhiva Ram and Ors. v. State of Rajasthan and Ors., 2000(3) WLC (Raj.) 645 : RLW

2000(3) Raj. 1667 6;

• Naresh Kumar Rajput and 16 Ors. v. State of Rajasthan and Anr., 1998(2) WLC (Raj.) 53

• RLW 1998(2) Raj. 852 6; Shree Cement Ltd. v. The Union of India, 2002(4) WLC Raj. 5

: RLW 2003(2) Raj. 1358 6;

• Municipal Council, Pali v. Bhadur Raj Mehta, 2000(4) 'WLC (Raj.) 149 : RLW 2000(1)

Raj. 418 6;

• Rajendra Kumar v. State of Rajasthan, RLW 2005(1) Raj. 441 7;

• Mukesh Kumar Ajmera v. State of Rajasthan and Ors. RLW, 1997(2) Raj. 1061 14;

• AIR India v. Nagesh Meerza and Ors., 1981(4) SCC 335 15


15. Area of Dispute Category- Delimitation

16. Provisions of Law Involved- Section 19(1)Panchayati Raj Act, 1994


Present writ petition was filed against the order by which the Petitioner was held disqualified

from taking part in panchayat election as he had more than two children. The facts of the case

are that the petitioner married with one Sharda Devi in May, 1987 as per Hindu Rites and out of

the wedlock a daughter was born to the petitioner. The petitioner's wife Sharda Devi died in

May, 1993. The petitioner, thereafter, married Indra in May, 1994 and out of these wedlock two

sons born to the petitioner. Smt. Indra died in Oct. 1997. Therefore by two marriages the

petitioner got three children. After the death of second wife of the petitioner, the petitioner

contracted third marriage but there was no child from that wedlock. According to Sub- clause (1)

of Section 19 of the Rajasthan Panchayati Raj Act, 1994 a person who has more than two

children and with a birth of any child after 27th Nov., 1995 is a disqualified person to contest the



941

588

election for any of the posts of the Panchayat as provided under the Act of 1994. Therefore the

petitioner was declared disqualified on the ground that the petitioner had more than two children

and one of the children of the petitioner was born after cut out date i.e. 27.11.1995 though the

petitioner had no child from his present (third) wife and even from his earlier wives, the

petitioner did not have more than two children.


It was held by the court that the right to be elected was a pure and simple statutory right and

created by statute and subject to statutory limitation from Section 19 of the Rajasthan Panchayati

Raj Act, 1994. The right to privacy and liberty were not absolute rights and restrictions could be

imposed from compelling interest of the State upon such rights. Restriction imposed in Section

19(1) of above Act did not outrage dignity of individual, nor did it infringe any of fundamental

rights. The restrictions had been laid down with social purpose, i.e. to fulfill mandate given in

Directive Principles enshrine in the Constitution of India. A Person may out of marital life

produce more than two children but in that case statutory right conferred under the Act would

not be available to him as these are rights created under statute and are subject to statutory

limitations. The Petitioner who gave birth to his third child after the cut out date though from

two wives incurred disqualification with birth of his third child. By the death of the Petitioner's

first wife, Petitioner's relation with his children from the first marriage was not severed .With the

death of Petitioner's second wife also, the Petitioner had not became issue less .Though the

Petitioner had no children from his third wife still he was the father of three children at the

relevant time . In view of the above the court did not find any merit in writ petition and hence,

the writ petition was dismissed.


The right to be elected is a pure and simple statutory right and created by statute and (in present

case) subject to statutory limitation from Section 19 of the Rajasthan Panchayati Raju Act, 1994.

The right to privacy and liberty are not absolute rights; therefore, restrictions can be imposed

from compelling interest of the State upon right of privacy and liberty.



942

589

20. Obiter Dicta-

It is clear from the language used in Section 19 of the Rajasthan Panchayat Raj Act, 1994 that

the restriction applied to the registered voter irrespective of the application of personal law to

that voter.



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XI. Smt. Saroj Chotiya v. State of Rajasthan and Ors.




4. Name of the Bench - B.R. Arora and A.K. Singh, JJ.

5. Case Number – D.B. Civil Misc. Writ Petition No. 870 of 1997

6. Name of the case - Smt. Saroj Chotiya v. State of Rajasthan and Ors.

7. Date of Judgement - : 02.07.1997

8. Appellant – Smt. Saroj Chotiya


10. Case Type – Civil Misc. Writ Petition


a. The validity of Section 26(xiv) and its proviso (e) of the Rajasthan Municipalities Act.

b. The legality and correctness of the order by which the petitioner was put under

suspension on the basis of the above mentioned provision.

12. Grounds of Challenge – The validity of Section 26(xiv) and its proviso (e) of the

Rajasthan Municipalities Act and the legality and correctness of the order by which the

petitioner was put under suspension on the basis of the above mentioned provision.


• State of Madhya Pradesh v. G.C. Mandawar, AIR 1954 SC 493;

• Prabhakaran Nair etc. etc. v. State of Tamil Nadu, AIR 1987 SC 2117;



944

591

• L. N. Mishra Institution of Economic Development and Social Changes v. State of Bihar,

AIR 1988 SC 1136;

• Mukesh Kumar Ajmera v. State of Rajasthan;

• Air India v. Nagesh Meerza, (1981) 4 SCC 335, AIR 1981 SC 1829




Rajasthan Municipalities Act, 1959 - Section 26, Rajasthan Municipalities Act, 1959 – Section

63; Constitution of India - Article 14, Constitution of India - Article 21; Representation of

People Act.


In this case, the Petitioner Smt. Saroj Chotiya, by a writ petition, challenged the validity of

Section 26(xiv) and its proviso (e) of the Rajasthan Municipalities Act, which provides for the

general disqualification for the person to be elected as a Member, who has more than two

children; and also the legality and correctness of the order by which the petitioner was put under

suspension. At the time when the petitioner conceived, the period provided in the clause was

only one year, which was later on amended to three years. The petitioner knew law at the time

when she conceived and, therefore, the ground taken by the petitioner was that the birth of the

child would have taken place before November, in the normal course, and, therefore, she would

not have incurred any disqualification. The brief facts are that the Petitioner was declared elected

as a Member of the Municipal Board and soon after she gave birth to the third child. A notice

under Section 63 of the Rajasthan Municipalities Act was issued to the petitioner by the Deputy

Secretary, Local-Self Government, by which she was asked to explain why she should not be

removed from the post of the Member of the Board as she had incurred the disqualification

under Section 26 of the Act by giving birth to the third child. She filed the reply to this notice.

After considering her reply, she was put under suspension and the matter was referred for a

judicial enquiry.



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The provisions of Section 26 (xiv) Proviso (e) of the Rajasthan Municipalities Act are a valid

law. Sub-section (4) of Section 63 of the Rajasthan Municipalities Act authorizes the State

Government to put a person under suspension, against whom proceedings under Section 63 for

removal have been commenced. The proceedings against the petitioner had already been

initiated and the matter had been referred for making a judicial enquiry in the matter and,

therefore, the petitioner had been rightly put under suspension by the State Government. Giving

birth to the third child after the appointed date, had not been disputed and during the pendency of

the enquiry, the State Government had the power to put a person like the petitioner under

suspension as the enquiry had commenced against her. Thus the Court did not see any infirmity

in the order passed by the State Government putting the petitioner under suspension. Thus the

writ petition was dismissed.


The right to be elected is not a fundamental right but only a statutory right which flows from the

statute and hence may have statutory limitations.

20. Obiter Dicta-

Fast growing population is a menace to the national growth and the Government is empowered

to seek its remedy by imposing restrictions.



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XII. Karamjeet Singh v. State of Rajasthan




4. Name of the Bench - Pratap Krishna Lohra, J.


6. Name of the case - Karamjeet Singh v. State of Rajasthan


8. Appellant – Karamjeet Singh




Whether the allotment of a residential plot measuring 50' x 100' by the Gram Panchayat in

favour of the petitioner in the given case was valid?


Validity of the allotment of a residential plot measuring 50' x 100' by the Gram Panchayat in

favour of the petitioner in the given case


14. Area of Dispute Name – Property




947

594


Rajasthan Panchayati Raj Act, 1994 - Section 89, Rajasthan Panchayati Raj Act, 1994 – Section

97


The Petitioner Karamjeet Singh preferred the present writ petition for assailing the impugned

order passed by the learned Addl. District Collector whereby revision petition filed by

respondent No. 5 Dr. Kashmeer Dhillon under Sec. 97 of the Panchayati Raj Act was allowed.

The brief facts of the case are that respondent No. 5 Dr. Kashmeer Dhillon laid a revision

petition under Sec. 97 of the Rajasthan Panchayati Raj Act of 1994 challenging allotment of a

residential plot measuring 50' x 100' by the Gram Panchayat, Sahuwala in favour of the

petitioner and its regularization by the Gram Panchayat, inter alia, on the ground that the said

land was earlier allotted to her ancestors. It was the averred in the revision petition that when

petitioner Karamjeet Singh staked his claim for ownership on land in question allotted in the

name of her ancestors by way of filing an application before the Chief Executive Officer, Zila

Parishad, she came to know that the petitioner in conspiracy with Gram Panchayat got a forged

patta issued in his name. The alleged allotment of land in question in favour of petitioner was

questioned by the fifth respondent precisely on the ground that allotment had been made free of

cost without adhering to the prescribed procedure and determining eligibility of the petitioner for

the said allotment. Such allotment was permissible to the members of Scheduled Castes,

Scheduled Tribes, small and marginal farmers, who do not own any land in their name.

Moreover, it is also pleaded in the revision petition that Gram Panchayat could allot residential

plot free of cost to certain categories of persons with specific dimensions i.e. 150 sq.yds.,

whereas the allotted land was approximately 555 sq.yds which was not permissible under the

law.


Upon examining the alleged allotment of plot and issuance of Patta to the petitioner on the

touchstone of the the Rajasthan Panchayat and Nyaya Panchayat (General) Special Allotment of

Abadi Land for Residential House Sites to Scheduled Castes, Scheduled Tribes, Landless

persons, village Artisans and Small and Marginal Farmers Rules 1975, he court held that, it was



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crystal clear that said allotment was dehors the Rules of 1975. There was apparently no material

on record to show that petitioner was eligible within the four corners of Rule 3 of the Rules of

1975 for such an allotment. Even otherwise, in terms of Rule 6 of the Rules of 1975, a plot of

150 sq.yds could be allotted free of charge to an incumbent who was eligible for such allotment.

Looking to the size of the plot, such allotment was not permissible within the four corners of

Rules of 1975. Thus, in totality of circumstances, the court found no illegality in the impugned

order as the learned Addl. Collector while passing the impugned order had set at naught

allotment of land in favour of petitioner by concluding that the said allotment suffered from

serious legal infirmity being dehors Rule 267 of the Rules of 1961 and also in clear negation of

Rules of 1975, and therefore declined to interfere with the impugned order. The allotment, which

was illegal and void ab-initio right from inception, in favour of the petitioner, could not be

protected in exercise of extraordinary jurisdiction of the Court. Thus the writ petition was

dismissed.


Under Rule 5 of the the Rajasthan Panchayat and Nyaya Panchayat (General) Special Allotment

of Abadi Land for Residential House Sites to Scheduled Castes, Scheduled Tribes, Landless

persons, village Artisans and Small and Marginal Farmers Rules 1975, an applicant seeking

allotment under the Rules of 1975 is required to submit a declaration that he has no house or

house site anywhere in Rajasthan in his name or in the name of any member of his family.




949

596

XIII. Devendra Kaur v State of Rajasthan




4. Name of the Bench - Pratap Krishna Lohra, J.


6. Name of the case - Devendra Kaur v State of Rajasthan


8. Appellant – Devendra Kaur




Whether the order passed by the learned Addl. District Collector (Vigilance) whereby the

revision petition of the petitioner under Sec. 97 of the Panchayati Raj Act 1994 was rejected;

was valid?


Validity of the order passed by the learned Addl. District Collector (Vigilance) whereby the

revision petition of the petitioner under Sec. 97 of the Panchayati Raj Act 1994 was rejected


14. Area of Dispute Name – Property


16. Provisions of Law Involved- Rajasthan Panchayati Raj Act, 1994 - Section 97



950

597


The Petitioner Devendra Kaur preferred the present writ petition for assailing the impugned

order passed by the learned Addl. District Collector (Vigilance) whereby her revision petition

under Sec. 97 of the Panchayati Raj Act 1994 was rejected. The brief facts of the case are that

the petitioner laid a revision petition under Sec. 97 of the Act of 1994 challenging allotment of a

Residential Plot measuring 50' x 100' by Gram Panchayat Motasar in favour of 4th respondent,

inter-alia, on the ground that earlier the said plot was allotted to her husband by the Gram

Panchayat and while making allotment free of charge in favour of 4th respondent, there was

apparent error in demarcation of the plot which was already allotted to her. The learned Addl.

District Collector (Vigilance), after hearing the rival parties, declined to interfere in the matter

precisely on the ground that the petitioner had not placed on record the order of allotment and

Patta issued in her husband's name and furthermore the concerned Gram Panchayat had not

made available the requisite record to show the alleged earlier allotment. That apart, the learned

Addl. Collector had also observed that in want of requisite record, it was not possible to accept

the contention of the petitioner that part of Plot No. 21 had been converted as Plot No. 19 and

thereafter allotted to the private respondent.


The court observed that upon examining the alleged allotment of plot and issuance of Patta to the

petitioner's husband on the touchstone of the Rules of 1975, it was crystal clear that said

allotment was dehors the Rules of 1975. There was apparently no material on record to show

that petitioner's husband was eligible within the four corners of Rule 3 of the Rules of 1975 for

such allotment. Even in terms of Rule 6 of the Rules of 1975, a Plot of 150 sq.yds could be

allotted free of charge to an incumbent who was eligible for such allotment. Looking to the size

of the plot, such allotment was not permissible within the four corners of Rules of 1975. So far

as the 4th respondent was concerned, he belonged to the privileged class of the Society, as such;

he was eligible for allotment under Rule 3 of the Rules of 1975. Thus, in totality of

circumstances, when the petitioner had not been able to produce allotment order and Patta issued

in favour of her husband before the learned Addl. District Collector (Vigilance) and no record

was available before that authority; the court did not find any illegality in the impugned order.

There was apparent legal infirmity in the alleged allotment of plot in favour of petitioner's



951

598

husband under the Rajasthan Panchayat and Nyaya Panchayat (General) Special Allotment of


persons, village Artisans and Small and Marginal Farmers Rules 1975 and the court declined to

interfere with the impugned order passed by the learned Addl. District Collector (Vigilance).

Thus the writ petition was accordingly dismissed.


Under Rule 5 of the Rajasthan Panchayat and Nyaya Panchayat (General) Special Allotment of


persons, village Artisans and Small and Marginal Farmers Rules 1975, an applicant seeking

allotment under the Rules of 1975 is required to submit a declaration that he has no house or

house site anywhere in Rajasthan in his name or in the name of any member of his family.




952

599

XIV. Ram Singh Barwal v. State of Rajasthan




4. Name of the Bench – Jagdish Bhalla, C.J. and D.M. Bhandari, J.

5. Case Number – D.B. Civil Special Appeal No. 308 of 2009

6. Name of the case - Ram Singh Barwal v.State of Rajasthan


8. Appellant – Ram Singh Barwal


10. Case Type – Civil Special Appeal


Whether in the present case, the appointment to the post of Prabodhak had been made in

violation of Article 14 and 16 of the Constitution of India and in violation of the provisions of

the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008?


Legality of the appointment to the post of Prabodhak under Article 14 and 16 of the Constitution

of India and the provisions of the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008


• Richpal Singh v. State: 2005(1) WLC 548;

• State of Maharashtra v. Raj Kumar: AIR 1982 SC 1301;

• Sant Ram Sharma v. State of Rajasthan: AIR 1967 SC 1910;



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600

• Dhananjay Malik and Ors. v. State of Uttaranchal and Ors.: AIR 2008 SC 1913

14. Area of Dispute – Personnel System

15. Area of Dispute Category- Appointment Related


Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 - Rules 13, Rajasthan Panchayati Raj

Prabodhak Service Rules, 2008 - Rules 14, Rajasthan Panchayati Raj Prabodhak Service Rules,

2008 - Rules 20, Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 - Rules 21, Rajasthan

Panchayati Raj Prabodhak Service Rules, 2008 - Rules 22, Rajasthan Panchayati Raj Prabodhak

Service Rules, 2008 - Rules 23, Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 -

Rules 24, Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 - Rules 25, Rajasthan

Panchayati Raj Prabodhak Service Rules, 2008 - Rules 26; Constitution of India - Article 14,



By these appeals a challenge had been made to a common judgment whereby a bunch of writ

petitions were decided. The matter in the present case pertained to the appointment on the post

of Prabodhak pursuant to the provisions of the Rajasthan Panchayati Raj Prabodhak Service

Rules, 2008. Teachers working under the educational projects of the State were given higher

bonus marks for each teaching year's experience apart from the benefit of age for judging their

eligibility. While the Rules of 2008 came into effect, definition of teaching experience' was

provided under Section 2(k) and method of recruitment in Parts III & IV of the Rules,

accordingly, advertisement was issued calling for the applications from and amongst the eligible

candidates. The recruitment to the post was required to be made as per the "method of direct

recruitment" provided under the Rules of 2008. After calling for applications from the eligible

candidates for selection on the post of Prabodhak, Respondents took an administrative decision

to provide five bonus marks for each teaching year's experience to Para Teachers etc. working in

educational project, with the ceiling of maximum 25 marks whereas Teachers of private

recognized institutions were awarded only two bonus marks for each teaching year's experience

with the ceiling of maximum 10 marks. By aforesaid, the Teachers, who gained teaching



954

601

experience in the private institutions, were deprived to get equal treatment. This was more so

when the advertisement was silent on that issue apart from the Rules of 2008. Another issue was

raised in regard to the age of the candidate for judging his eligibility. As per Rule 13(v) of the

Rules of 2008, those Teachers who had imparted education in specified educational projects

were deemed to be within the age limit, had they been within the age limit at the time of their

initial engagement. The Teachers of private recognized institutions were not given similar

benefit so as other Teachers working in the government educational projects other than specified

under Rule 13(v) of the Rules of 2008. By virtue of aforesaid, Teachers of specified educational

projects were considered for selection and given appointment irrespective of their attaining age

more than provided under the Rules, only for the reason that at the time of their initial

appointment in specified educational projects, they were within the age limit.


The Rajasthan Panchayati Raj Prabodhak Service Rules, 2008so provides that the advertisement

did not provide award of bonus marks and it was only by way of an administrative decision,

bonus marks had been given. If only definition of "direct recruitment" was taken, it provided,

direct recruitment means recruitment made in accordance with Part IV of the Rules of 2008. In

Part IV, Rule 20 provided constitution of committee whereas Rules 21 to 23 provided manner of

inviting applications, form of application and application fee. Rule 24 provided scrutiny of

applications whereas Rule 25 provides recommendation of the Committee for appointment by

arranging a list in order of merit. Rule 26 provides selection by appointing authority. Perusal of

the Rules did not show as to what would be the basis of determination of the merit, though the

Rules talked about the arrangement of the list in order of merit, hence, criteria for determination

of the merit was to be provided. The State Government, accordingly, took a decision for

determination of the merit with bonus marks. In view of the aforesaid, it could not be said that

by providing criteria for bonus marks to adjudge merit of the candidates, Rules of 2008 had been

violated. It is a settled law that by administrative decision, Rules can be supplemented and

herein Rules had been supplemented by laying down the criteria to adjudge merit with bonus

marks. It was not necessary to disclose criteria for judging merit in the advertisement. Thus if the

advertisement was silent on the issue of award of bonus marks, the administrative decision could

not be said to be illegal for providing bonus marks at the time of judging merit of the candidates



955

602

.Also held, that the two categories of teachers could not be said to be equal. Thus different

treatment for award of bonus marks could be provided by the Government because it was then

based on reasonable classification. Thus there was no violation of Articles 14 &16 of the

Constitution. Also it was not a case where even definition of "teaching experience" as given

under the Rules of 2008 had been violated and the administrative action of the Respondents

could not be said to be discriminatory or illegal in award of different bonus marks for selection

to the post of Prabodhak. Next, the provisions of Rule 13 provided certain age relaxation in

favour of reserved caste candidates and other category of candidates specially given therein. The

candidates, who were not covered by the proviso to Rule 13 of the Rules of 2008 could not seek

benefit contrary to provision of Rule 13 of the Rules of 2008 because a candidate less than of 23

years and more than of 35 years of age was not eligible for recruitment. Hence, if any of the

Appellants was below the age of 23 years or had crossed the age of 35 years, he could not be

held to be eligible. Therefore all the appeals failed and were dismissed.


Equals cannot be made unequals and, same way, unequals cannot be made equals and if that is

so done, then it becomes violative of Articles 14 & 16 of the Constitution of India. In view of

aforesaid legal position, if a candidate is similarly placed, then he is entitled for equal treatment

i.e., to treat all equals with one criteria. At the same time, if there exists difference in two

categories, then it becomes a case of unequals and thereby if unequals are made equals then also

it violates Articles 14 & 16 of the Constitution of India.




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603

XV. Khem Das Vs .The State of Rajasthan and Anr.




4. Name of the Bench - P.P. Naolekar

5. Case Number –

S.B. Civil Writ Petition Nos. 1068, 1075, 1190, 1191, 1285, 1302, 1303, 1342, 1368, 1399,

1423, 1430, 1526, 1584, 1585, 1586, 1791, 1797, 1875, 2065, 2262, 2447, 2713, 2853, 2855,

2854, 2874, 2973, 3185, 3507, 3508, 3531, 3532, 3537, 3627 and 3724 of 1997

6. Name of the case - Khem Das Vs .The State of Rajasthan and Anr.


8. Appellant – Khem Das

9. Respondent – The State of Rajasthan and Anr.



Whether the orders issued by the authorised officer cancelling the authorisation of the petitioners

and the notices issued for cancellations of authorisation were in contravention of the provisions

of law?

12. Grounds of Challenge – Legality of the orders issued by the authorised officer

cancelling the authorisation of the petitioners and the notices issued for cancellations of

authorisation


• Mannalal Jain vs. The State of Assam and Ors. 1962 AIR 386, 1962 SCR (3) 936;



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604

• Madhya Pradesh Ration Vikreta Sangh Society and Ors. vs. State of Madhya Pradesh and

Anr. 1981 AIR 2001, 1982 SCR (1) 750

14. Area of Dispute Name – Devolution

15. Area of Dispute Category- Devolution of Power Related

16. Provisions of Law Involved - Constitution Of India - Article 14, Constitution Of India -

Article 19, Constitution Of India - Article 162, Constitution Of India - Article 226; Essential

Commodities Act, 1955 - Section 3, Essential Commodities Act, 1955 - Section 5.


The Petitioners were authorised fair price shopkeepers holding authorisation under the Rajasthan

Foodgrains and Other Essential Articles (Regulation of Distribution) Order, 1976.The petitioners

were issued authorisation by the Authorised Officer in exercise of powers conferred on him

under clause 3 of the Order of 1976. Various cases of irregularities and illegalities had been

brought to the notice of the Department and the State Govt. and in view thereof, the State Govt.

in consultation with the Legal Department had taken a decision that Sarpanch, Panch, Municipal

Counsellor and members of Panchayat Samiti being public servants, it would not be lawful or

expedient to allot authorisation to them to be an authorised fair price shopkeeper. Thus, any

person who had been elected or nominated as Panch, Sarpanch, Municipal Counsellor or

member of a Panchayat Samiti, the authorization issued to be an authorised fair price

shopkeeper, be cancelled and in future no authorization should be given to these persons to run

fair price shops. In pursuance of this order issued by the State Govt. the authorisation given to

some of the petitioners to run fair price shop, was cancelled and some of the petitioners were

issued notice as to why their authorisation to run the fair price shop may not be cancelled on

account of they being elected or nominated as Panch, Sarpanch, Municipal Counseller or

member of Panchayat Samti. The order issued by the State Govt. cancelling the authorisation to

run the fair price shops and the notices issued for cancellation of the authorisation to the

petitioners were challenged by filing the present petitions under Article 226 of the Constitution

of India



958

605


The court observed that the term "Any person" in Clause 3(1) of the Rajasthan Foodgrains and

Other Essential Articles (Regulation of Distribution) Order, 1976 does not mean every person

and that the State Govt. has power and authority to restrict giving of authorisation by policy

decision looking into the general interest of the public. The policy decision taken to withhold

authorisation to fair price shop by a person holding the office of Panch, Sarparch, Municipal

Counsellor or member of Panchayat Samiti was taken on the basis that a public servant was not

fit and proper to run a fair price shop. Hence there was no infringement of right under Clause

3(1). However the duty of the authorised officer was to pass an order in accordance with Clause

8 of the Order of 1976 and instead of doing that, he passed the orders of cancellation by taking

recourse to the policy decision taken by the State Govt. which was not in consonance with

Clause 8 of the Order of 1976. Clause 8 of the Order of 1976 does not contemplate cancellation

of authorization on the basis of a person being elected to the post of Panch, Sarpanch, Municipal

Counsellor or member of Panchayat Samiti. Therefore, the orders issued by the authorised

officer cancelling the authorisation of the petitioners and the notices issued for cancellations of

authorisation were in contravention of the provisions of law. Hence the order passed was liable

to be quashed. Thus the Petitions were allowed.


As per Article 19(1)(g) of the Constitution o India, the petitioners could carry on trade in

foodstuffs without hindrance as dealers but could not run fair price shops as agents of the Govt.

There is no fundamental right in any one to be appointed as an agent of fair price shop under the

Govt. scheme.

20. Obiter Dicta-

A policy decision which is not in consonance with the statutory provision, cannot be given effect

to by the authority.



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606

XVI. Ram Chandra Meena v. State of Rajasthan




4. Name of the Bench – Gopal Krishan Vyas, J.

5. Case Number – S.B. Civil Writ Petition Nos. 2029, 2031, 2032, 2033, 2150, 2151,

2152, 2153 and 2154 of 2007

6. Name of the case - Ram Chandra Meena v. State of Rajasthan


8. Appellant – Ram Chandra Meena



11. Main Law Points Involved – Whether the order passed by the Vikas Adhikari,

Panchayat Samiti, Arnod, whereby the services of the petitioners were terminated, was valid?

12. Grounds of Challenge – Validity of the order passed by the Vikas Adhikari, Panchayat

Samiti, Arnod, whereby the services of the petitioners were terminated


• Dhari Gram Panchayat vs. Saurashtra Mazdoor Mahajan Sangh and Anr. JT 1987 (3) SC

486, (1988) ILLJ 468 SC



State Agencies



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607

16. Provisions of Law Involved- Whether the order passed by the Vikas Adhikari,

Panchayat Samiti, Arnod, whereby the services of the petitioners were terminated, was valid?


In the entire above mentioned writ petitions, the petitioners challenged the impugned order

passed by the Vikas Adhikari, Panchayat Samiti, Arnod, whereby the services of the petitioners

were terminated .Brief facts of the case are that the petitioners were initially appointed on daily

wage basis for 90 days vide an order and they were allowed to continue on their post. While

working on the post, they were provided appointment vide an order on probation for two years

on the pay scale of 750-940 by the Vikas Adhikari, Panchayat Samiti, Arnod in pursuance of the

order passed by the Director .The services of the petitioners were regularized on the post of

Handpump Mistry as per the decision of the Administrative & Establishment Committee of

Panchayat Samiti, Arnod vide an order in the pay scale of 2550-3200.The State Government

issued direction vide an order to the Vikas Adhikari, Panchayat Samiti, Arnod, to terminate the

services of the petitioners after making compliance of section 25-F and G of the Industrial

Disputes Act, 1947 on the ground that appointment of the petitioners was irregular. In

compliance of the aforesaid order passed by the Panchayati Raj Department the services of the

petitioners were terminated after making compliance of section 25-F of the Act vide an order.

Against the said termination order, a joint writ petition was preferred by them before the Court

and the said writ petition was registered but the Co-ordinate Bench of the Court dismissed the

said writ petition vide an order with the liberty to invoke remedy under the Industrial Disputes

Act against the termination order . In compliance of above award passed by the Judge, Labour

Court, Bhilwara, the Panchayat Samiti, Arnod reinstated the petitioners vide an order but on the

same day, an order was issued by the Vikas Adhikari, Panchayat Samiti, Arnod, whereby the

petitioners' services were terminated. Meaning thereby, the respondents took decision that these

petitioners should not be allowed to work on the post of handpump mistry in the Panchayat

Samiti inspite of the fact that their services were regularized.


The Court observed that there was a mala fide intention behind the termination order because on

the same day of termination, the petitioners were reinstated in service even though the post of



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hand pump mistry was included in the Service Rules by the Panchayati Raj Department, Govt. of

Rajasthan. In view of the above it is held that due to mala fide reason, the decision was taken to

remove the petitioners from service, therefore, the writ petitions be allowed and the order of

termination be set aside. The petitioners were in the service in pursuance of the interim order

passed by the Court and therefore the respondents were directed to consider their cases for

regularization on the post of hand pump mistry as per the directions given by the Hon'ble

Supreme Court, in para 53 of the judgment in Secretary, State of Karnataka v. Uma Devi, 2006

(109) FLR 826 (SC), within a period of three months from the date of receiving certified copy of

the order. Thus the petition was allowed.

19. Ratio Deciendi-

The order of termination can be set aside if the decision taken is with mala fide intent.




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XVII. Mukesh Kumar Ajmera and Ors. v .State of Rajasthan and Ors.




4. Name of the Bench - B.R. Arora and A.K. Singh, JJ.

5. Case Number – Civil Misc. Writ Petn. Nos. 2340, 3934, 4302, 4366, 4457 and etc. of

1996 and 126, 531, 750 and etc. of 1997

6. Name of the case - Mukesh Kumar Ajmera and Ors. v .State of Rajasthan and Ors.


8. Appellant – Mukesh Kumar Ajmera and Ors.

9. Respondent –State of Rajasthan and Ors.

10. Case Type – Civil Misc. Writ Petn


a. Constitutional validity of Section 19 (L) read with Section 39 of Rajasthan Panchayati

Raj Act, 1994.

b. The legality and correctness of the orders passed by the respective Chief Executive

Officer, by which the petitioners were declared disqualified.

12. Grounds of Challenge – Constitutional validity of Section 19 (L) read with Section 39

of Rajasthan Panchayati Raj Act, 1994 and the legality and correctness of the orders passed by

the respective Chief Executive Officer, by which the petitioners were declared disqualified


• State of Madhya Pradesh v. G.C. Mandawar, AIR 1954 SC 493;



963

610

• Sant Lal Bharti v. State of Punjab, AIR 1988 SC 485;

• Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna v.

State of Bihar, AIR 1988 SC 1136;

• Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983;

• Air India v. Negesh Mcerza (1981) 4 SCC 335, AIR 1981 SC 1829

14. Area of Dispute Name–Election



Rajasthan Panchayati Raj Act, 1994 - Section 19(L), Rajasthan Panchayati Raj Act, 1994 -

Section 39, Rajasthan Panchayati Raj Act, 1994 - Section 39(1), Rajasthan Panchayati Raj Act,

1994 - Section 39(2), Rajasthan Panchayati Raj Act, 1994 - Section 40, Rajasthan Panchayati

Raj Act, 1994 - Section 40(3), Rajasthan Panchayati Raj Act, 1994 - Section 43; Indian Evidence

Act, 1872 - Section 17; Constitution of India - Article 14, Constitution of India – Article 21,

Constitution of India - Article 25, Constitution of India - Article 26, Constitution of India -

Article 246


The brief facts of the case are that the petitioner was declared elected as the Sarpanch of Gram

Panchayat, Banera. While he was acting as the Sarpanch, a notice under Section 39(2) of the

Rajasthan Panchayati Raj Act, 1994 was served on the petitioner stating therein that on account

of increase in the number of the children in the family to more than two after 27-11-95, the

petitioner had rendered himself ineligible to hold the Office of the Sarpanch and therefore he

was to show cause as to why he was not liable to be declared 'disqualified' to hold the office of

the Sarpanch of Gram Panchayat, Banera. The petitioner filed his reply. The Chief Executive

Officer passed the order declaring the petitioner as disqualified to hold the Office of the

Sarpanch and further declared the office of the Sarpanch as vacant. The petitioner challenged the

above order and further submitted that Section 19(L) read with Section 39-A of the Rajasthan



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Panchayati Raj Act, 1994 is ultra vires of the Constitution of India and there is no reasonable

nexus with the object sought to be achieved in enacting these provisions.


It was held by the court that the Act was legislated within the framework of the Scheme set out

by the Constitution. Section19 (L) of the Act of 1994 was within competence of State

Legislature to legislate such a law under Article 246 read with Entry 5 of List II and Entry 20-A

of List III of Schedule VII of the Constitution. Section 19(L) and Section 39 of the Act of 1994

showed reasonable nexus in framing these provisions with object sought to be achieved. The

restriction imposed under Section 19(L) did not outrage dignity of the individual as the

restrictions were laid down with a social purpose .There was no invasion of any constitutional

right of any person. There was no invasion on the part of the Legislature in the marital right of

person concerned or in the right of procreation of children .Thus, Section 19 (1)(L) and Section

39 of the Act were not in violation of any of the provisions of the Constitution of India and their

validity was upheld. However the order of the Chief Executive Officer declaring Petitioners as

disqualified was passed without an enquiry being conducted by a Judicial Authority under

Section 40 of the above mentioned Act. An order passed by an authority without compliance of

mandatory provision in violation of the Constitutional provision is void ab initio. Thus being in

violation of the statutory provisions the order was liable to be set aside. Thus the writ petition

was partly allowed.


Order passed by authority without compliance of mandatory provision in violation of

constitutional provision is void ab initio.

20. Obiter Dicta-

Right to privacy and liberty are not absolute rights. A law imposing reasonable restrictions upon

it for compelling interest of State must be held to be valid. The restriction imposed in Section

19(L) does not outrage the dignity of the individual.



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STATE OF TAMIL NADU

I. D. Bagyalakshmi v. The Secretary to Government , Department of Rural

Development and Panchayat Raj

1. State -Tamil Nadu

2. Court - High Court of Madras

3. Bench - Single

4. Name of bench - Justice V. Dhanapalan

5. Case no- 2011 (5) CTC 496, (2012) 1 MLJ 1013

6. Name of the case- D. Bagyalakshmi v. The Secretary to Government , Department of

Rural Development and Panchayat Raj


8. Appellant - D. Bagyalakshmi

9. Respondent - The Secretary to Government , Department of Rural Development and

Panchayat Raj



a. Whether the method undertaken by the Respondents for removal of the Petitioner from

the post of President was ultra vires of the mandatory provision under Sub-section (8) of

Section 205 of Tamil Nadu Panchayat Act, 1994?

b. Whether the act of the petitioner attracted the provisions of Sub-section (1) of Section

205 of the Tamil Nadu Panchayat Act, 1994 ?


Legality of the method undertaken by the Respondents for removal of the Petitioner from the

post of President was ultra vires of the mandatory provision under Sub-section (8) of Section

205 of Tamil Nadu Panchayat Act, 1994


• Manivannan v. The Government of Tamil Nadu and Ors. 2010 L.W. 489;

• A.R. Antulay v. Ramdas Srinivas Nayak and Anr 1984 (2) SCC 500;

• J.N. Ganatra v. Morvi Municipality Morvi 1996 (9) SCC 495;



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• Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors: 2003 (2) SCC 111;

• Vallivalam Desikar Polytechnic Educational Society, rep.by its Chairman, Nagapattinam

v. District Registrar (Society Registration), Nagapattinam and Anr: 2007 (4) MLJ 584 ;

• K. Ramalingam v Secretary to Governement , Department of Local Administration :

2011 (2) CTC 134 (DB);

• District Panchayat v. Devi Parasuraman : 2009 (4) CTC 609

14. Area of Dispute Name – Removal and No Confidence Motion


16. Provisions of Law Involved- Tamil Nadu Panchayats Act, 1994 - Section 205, Tamil

Nadu Panchayats Act, 1994 - Section 205(1), Tamil Nadu Panchayats Act, 1994 - Section

205(3), Tamil Nadu Panchayats Act, 1994 - Section 205(8), Tamil Nadu Panchayats Act, 1994 -

Section 205(12)

17. Gist of case -

The Writ Petition had been filed, praying for issuance of a writ of certiorarified mandamus, to

call for the records relating to the removal proceeding against the petitioner. The Petitioner was

the elected President of Sengunram village in the election held in the year 2006. While she was

functioning in the said post, a special audit was conducted by the Assistant Director (Audit) on

11.10.2008, during which some irregularities were found. Accordingly, a report was submitted

by the Assistant Director to the Inspector of Panchayat, namely, District Collector, the second

Respondent herein. Based on the said report, on 04.11.2008, the second Respondent issued a

show cause notice to the Petitioner under Section 205 of the Act. To the said show cause notice,

the Petitioner submitted her explanation on 14.11.2008. As the explanation given by the

Petitioner was not satisfactory, the second Respondent directed the third Respondent to conduct

a special meeting of the Panchayat to get the views of the Village Panchayat. Accordingly, the

third Respondent conducted a special meeting on 27.01.2009 and got the views of the Village

Panchayats of the total nine members of the Village, Panchayats two members remained absent

and the remaining seven members supported the Panchayats President to continue in office.

After getting the views of the Panchayats, the third Respondent sent the minutes of the meeting

to the second Respondent for action. Thereafter, the second Respondent considered the matter

and rejected the views of the members, supporting the Petitioner, pursuant to which, the



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Petitioner was removed from the post by the second Respondent. The contention of the

Petitioner was that no proper method was adopted for removal. Hence, the petition was filed


The court held that Section 205(8) of Act made it clear that, Tahsildar, after convening

meeting, should read to Village Panchayat, the notice of Inspector and explanation, if any, of

President and proposal for removal of President .Before taking any penal action against elected

person-Petitioner, authorities, who were vested with such power, must exercise caution and

proceed with removal proceedings. Method undertaken by Respondents for removal of Petitioner

from post of President was ultra vires of mandatory provision under Section 205 (8) of Act.

Order impugned of first Respondent was set aside. Hence petition was allowed


After initiation of the proceedings under Section 205 of the Tamil Nadu Panchayats Act,1994 it

the tehsildar must read the proposal for removal of the President of the Village Panchayat at the

meeting and when such procedure is not followed by the authorities concerned, the method

undertaken by the respondents for removal of the petitioner from the post of President is ultra

vires of the mandatory provision under Sub-section (8) of Section 205.

20. Obiter Dicta-

If a statutory authority is required to do a thing in a particular manner, the same must be done in

that manner or not at all and the State and other authorities while acting under the statute are

only creature of statute.



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II. D. Chandrasekar v. The District Collector, The Revenue Divisional Officer and

Budhur A. Venugopal

1. State - Tamil Nadu


3. Bench – Single Bench

4. Name of bench – K. Chandru, J.

5. Case no - W.P. No: 29535 OF 2010 and M.P No. 1 of 2010

6. Name of the case - D. Chandrasekar Vs The District Collector, The Revenue Divisional

Officer and Budhur A. Venugopal

7. Date of judgement - 17.06.2011

8. Appellant - D. Chandrasekar

9. Respondent- The District Collector, The Revenue Divisional Officer and Budhur A.

Venugopal

10. Case type- Writ Petition

11. Main law points involved: Whether the word ‘received’ u/s 212(15) of the Tamil Nadu

Panchayats Act 1994, under which no motion can be received either within one year of

assumption of office or during the last year of the term of office of the Chairman or Vice

Chairman, purport to mean motion being received by the authority competent to convene a

meeting u/s 212 (4), i.e. the Revenue Divisional Officer?

12. Grounds of Challenge: The scope of the word ‘received’ u/s 212(15) of the Tamil

Nadu Panchayats Act 1994


• Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. (1987) 1

SCC 424;

• Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama (1990) 1 SCC 277;

• Towne v. Eisner; Lenigh Valley Coal Co. v. Yensavage;

• Nirbhai Singh v. State of Punjab and Ors. Civil Writ Petition No. 7392 of 2011;

• State of Punjab and Ors. v. Nirbhai Singh

14. Area of Dispute Name : Removal and No Confidence Motion

15. Area of Dispute Category- Inappropriate conduct of Sarpanch and Other Members



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616

16. Provisions of Law Involved- Tamil Nadu Panchayat Act, 1994 - Section 1(2), Tamil

Nadu Panchayat Act, 1994 - Section 19, Tamil Nadu Panchayat Act, 1994 - Section 208, Tamil

Nadu Panchayat Act, 1994 - Section 211(15), Tamil Nadu Panchayat Act, 1994 - Section 212,

Tamil Nadu Panchayat Act, 1994 - Section 212(2), Tamil Nadu Panchayat Act, 1994 - Section

212(15); Punjab Panchayati Raj Act, 1994 ; Punjab Panchayat Raj (Amendment) Act, 2011 ;

Tamil Nadu Panchayats (Amendment) Act, 2008 - Section 4

17. Gist of case-

The case of the Petitioner was that he was the Vice Chairman of the Panchayat Union for the

past four years. The second Respondent had issued a notice to the Petitioner that was said to

have signed by 16 members of the Panchayat Union Council seeking to bring a “No Confidence

Motion” under Sections 208 and 212 of the Tamil Nadu Panchayat Act, 1994 against him. The

second Respondent on receipt of the same had asked for an explanation from the Petitioner. The

Petitioner gave his explanation. Subsequently the Petitioner was informed that in order to

consider the said “No Confidence Motion” and for voting on the motion, a meeting was being

convened on 24.12.2010 at 11.00 a.m. at the Panchayat Union office under the chairmanship of

the second Respondent. Petitioner contended that he was never given a copy of the complaint,

dated 18.10.2010 to offer his explanation. He also submitted that the proceedings initiated by the

second respondent on the basis of the complaints, dated 3.8.2010, 5.8.2010, 26.8.2010 and

18.10.2010 were all illegal, opposed to principle of natural justice and contrary to Section 212 of

the Tamil Nadu Panchayat Act.


Court held that the amendment that was introduced by the Act 31/1999 as well as Act 10/2008 is

found under Section 212(15). The said section was placed after the procedure for discussing the

motion by the council and voting on it thereafter. Therefore, the term "no confidence" shall be

received under the section means that it is to be received by the council which has to consider

the motion. It did not refer to the officer who receives a written notice of intention to make the

motion. The court held that it must be noted that the provision for no confidence motion is a

creature of the legislature and the said provision will have to be strictly construed. Hence the

impugned notice cannot stand the scrutiny of law.



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617


The idea behind the Section 212(15) of Tamil Nadu Panchayat Act, 1994 was that there must be

harmony at least during the starting year as well as concluding year of the term of office. If the

idea was that either during inaugural year or the concluding year they should not to be disturbed,

then no motion can be allowed to be passed during the said period.

20. Obiter Dicta:

A statute is best interpreted when we know why it was enacted. With this knowledge, the statute

must be read, first as a whole and then section by section, clause by clause, phrase by phrase and

word by word. If a statute is looked at, in the context of its enactment, with the glasses of the

statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words

may take colour and appear different than when the statute is looked at without the glasses

provided by the context.



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III. M. Egavalli Mahalingam v.The State of Tamil Nadu represented by the Principal

Secretary to Government Rural Development and Panchayat Raj Dep


2. Court - High Court Of Madras

3. Bench – Single

4. Name of bench -K. Chandru, J.

5. Case no- W.P. No. 12610 of 2009 and.M.P. Nos. 1 and 2 of 2009

6. Name of the case- M. Egavalli Mahalingam v.The State of Tamil Nadu represented by

the Principal Secretary to Government Rural Development and Panchayat Raj Dept


8. Appellant - M. Egavalli Mahalingam

9. Respondent - The State of Tamil Nadu represented by the Principal Secretary to

Government Rural Development and Panchayat Raj Dept


11. Main law points involved- Whether in light of section 205 of The Tamil Nadu

Panchayati Raj Act, 1994 the Petitioner is entitled to an opportunity of being heard before a

punishment of removal from the post of President of the Panchayat can be passed by the District

Collector, the second Respondent herein?

12. Grounds of challenge- Whether in light of section 205 of The Tamil Nadu Panchayati

Raj Act, 1994 the Petitioner is entitled to an opportunity of being heard before a punishment of

removal from the post of President of the Panchayat can be passed by the District Collector, the

second Respondent herein?


• J. Maria Selvam v. Government of Tamil Nadu and Anr. 2006 (3) MLJ 537;

• S. Udayakumar v. The District Collector-cum-Inspector of Panchayats, Tuticorin District

and Ors. 2009 Writ L.R. 538;

• The District Collector and Inspector of District Panchayatyat v. Devi Parasuraman 2009

(4) CTC 609;

• Consumer Action Group v. State of T.N. 2000 (4) CTC 181 (SC) : 2000(7) SCC 425

14. Area of Dispute Name – Removal and No Confidence Motion



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16. Provisions of Law Involved- Tamil Nadu Panchayat Act - Section 2, Tamil Nadu

Panchayat Act - Section 205, Act - Section 205(2), Tamil Nadu Panchayat Act - Section

205(11), Tamil Nadu Panchayat Act - Section 205(12)

17. Gist of case -

The writ petition was filed by the Petitioner against the order of the Government in

G.O.(D)No.294, Rural Development and Panchayat Raj Department, dated 25.5.2009 passed by

the first Respondent, confirming the order of the second Respondent, the District Collector,

Tiruvallur District, ordering removal of the Petitioner from the post of the President of

Kummanur Village Panchayat under Section 205(11) of the Tamil Nadu Panchayat Act for

misusing the power of a Panchayat President and caused loss to the panchayat. After considering

the charges, her explanation and views given by the Panchayat members, the Collector, who is

also the Inspector of Panchayats having been satisfied that removal of petitioner is the only

option had issued the said notification.Petitioner contended that she being illiterate was not

aware and therefore she should not to be removed.


Court held that nothing on record was there in the instant case to show that Collector had

exercised his power in manner set out .Court did not remit matter back to first respondent.

Opined that remitting back matter to revisional authority would not cure defect pointed by

present Court and that prejudice has been pleaded as specific ground in memorandum of revision

filed by petitioner even in earlier round of litigation .Since legal provisions were not adhered to

by District Collector, matter is remitted back . Writ Petition was thus allowed.


An act of the Inspector under Section 205 is quasi-judicial in nature; (ii)If the Inspector is

satisfied with the explanation submitted by the President under Section 205, he is required to

record his satisfaction for dropping the proceeding; and (iii)If the Inspector differs with the

views expressed by the Village Panchayat and decides to remove the President or to drop the

proceeding against the President, he is not only required to record the reasons for differing with

the views of the Village Panchayat, but before taking any decision to remove the President, the

Inspector is also required to provide further notice to the President intimating the reasons for



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difference and can issue notification only on consideration of cause, if any, shown by the

President


An act of the Inspector under Section 205 is quasi-judicial in nature. If the Inspector is satisfied

with the explanation submitted by the President under Section 205, he is required to record his

satisfaction for dropping the proceeding; and If the Inspector differs with the views expressed by

the Village Panchayat and decides to remove the President or to drop the proceeding against the

President, he is not only required to record the reasons for differing with the views of the Village

Panchayat, but before taking any decision to remove the President, the Inspector is also required

provide further notice to the President intimating the reasons for difference and can issue

notification only on consideration of cause, if any, shown by the President



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IV. The State and Ors v. C. Jebakumar and Ors



3. Bench – Two Judge ,Division Bench

4. Name of bench – S. Manikumar and G. Chock lingam, JJ

5. Case no- Review Application (MD) No. 96 of 2014

6. Name of the case- The State and Ors v.C. Jebakumar and Ors


8. Appellant - The State and Ors

9. Respondent - C. Jebakumar and Ors


11. Main law points involved- Whether the present review petition is maintainable in the

light of the Order of the Hon’ble Division Bench in W.A. (MD) No. 147 of 2013?

12. Grounds of challenge- Code of Civil Procedure, 1908 (CPC) - Order XL Rule 1; Code

of Civil Procedure, 1908 (CPC) - Order XLVII Rule 1; Constitution Of India - Article 137,

Constitution Of India - Article 145, Constitution Of India - Article 226

13. Reference taken from the cases-

• K. Duraisamy vs. Tamil Nadu Electricity Board and others; (1992) IILLJ 197 Mad

• Lily Thomas, Etc. Etc. vs. Union of India & Ors; 2000 (6) SCC 224,

• Patel Narshi Thakershi and Ors. vs. Shri Pradyumansinghji Arjunsinghji; [AIR (1970) SC

1273]

• S. Nagaraj and Ors. vs. State of Karnataka and Anr.; [1993 Supp. (4) SCC 595]

• Raja Prithwi Chand Lal Choudhury vs. Sukhraj Rai and Ors.;

• Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi ;

• Sajjan Singh vs. State of Rajasthan

• Girdhari Lal Gupta vs. D.N. Mehta and Anr.;

• O.N. Mohindroo vs. The District Judge, Delhi and Anr.

• Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma and Ors. (1979) 4 SCC 389, 1979

(11) UJ 300 SC;

• The State of West Bengal and Ors. vs. Kamal Sengupta and Anr;

• Parsion Devi and Ors. vs. Sumitri Devi and Ors. ,



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• Thungabhadra Industries Ltd. vs. The Government of Andhra Pradesh;

• Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury;

• Shivdeo Singh and Ors. vs. State of Punjab and Ors.

• Satyanarayan Laxminarayan Hegde and Ors. vs. Millikarjun Bhavanappa Tirumale;

• Delhi Administration vs. Gurdip Singh Uban and Ors. (2001(1) MLJ 45 (SC)

• Kerala State Electricity Board vs. Hitech Electrothermics and Hydropower Ltd. and Ors:

(2005) 6 SCC 651

• Haridas Das vs. Smt. Usha Rani Banik and Ors. (2006(4) SCC 78)

14. Area of dispute name – Others

15. Area of dispute category-Dispute among panchayats and between panchayats and state


16. Provisions of laws involved- Code of Civil Procedure, 1908 (CPC) - Order XL Rule 1;

Code of Civil Procedure, 1908 (CPC) - Order XLVII Rule 1; Constitution Of India - Article 137,

Constitution Of India - Article 145, Constitution Of India - Article 226


The Government in Rural Development and Panchayat Raj Department and the District

Collector, Kanyakumari District, have come forward with the present review application,

seeking to review the order passed in Writ Appeal (MD)No. 147 of 2013, dated 22.02.2013

which contains regularization of the services of a water supply attender in a village panchayat.


Reverting to the case on hand, going through the order of the Hon'ble Division Bench in

W.A.(MD)No. 147 of 2013, dated 22.02.2013, the court could not find any mistake or error

apparent on the face of it. Hence it warranted interference by way of review. The court opined

that the review petitioners seeked to review a factual finding given in the writ appeal, wherein it

has been categorically held that the respondent No. 1 was employed only as daily wage worker,

on full time basis. It cannot be done in review. In view of the above discussion and decisions

referred, the review application was dismissed.


An error can be said to be apparent on the face of the record only if such error is patent and can

be located without any elaborate argument and without any scope for controversy with regard to

such error, which stares at the face even by a mere glance of the judgement.



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20. Obiter Dicta-

The term `mistake or error apparent' by its very connotation signifies an error which is evident

per se from the record of the case and does not require detailed examination, scrutiny and

elucidation either of the facts or the legal position. If an error is not self-evident and detection

thereof requires long debate and process of reasoning, it cannot be treated as an error apparent

on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act.

To put it differently an order or decision or judgment cannot be corrected merely because it is

erroneous in law or on the ground that a different view could have been taken by the

Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the

concerned Court/Tribunal cannot sit in appeal over its judgment/decision.



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V. K.V. Muthuramalingam v. Soloman and Election Officer-cum-Block Development

Officer, Kamudhi Panchayat Union


2. Court - High court of Madras

3. Bench - Single

4. Name of bench -A. Rama Murthi, J.

5. Case no- Civil Revision Petition (NPD) No. 1666 of 2002 ; 2003-1-LW740

6. Name of the case- K.V. Muthuramalingam v. Soloman and Election Officer-cum-Block

Development Officer, Kamudhi Panchayat Union


8. Appellant - K.V. Muthuramalingam

9. Respondent - Soloman and Election Officer-cum-Block Development Officer, Kamudhi

Panchayat Union



a. Whether the revision Petitioner is disqualified from contesting the Panchayat Election?

b. Whether the objection raised by the 1st Respondent is sustainable under law?

c. Whether the order passed by the court below is proper and correct?

d. Whether the order declaring the 1st Respondent herein as duly elected is proper and

correct?

12. Grounds of challenge- Eligibility of the Petitioner to contest the Panchayat Election


• Satya Narain vs. Dhuja Ram and Ors.M/s;

• Devidayal Rolling Mills vs. Prakash Chiman Lal Parikh and others

14. Area of dispute name- Election

15. Area of dispute category-Eligibility of candidates

16. Provisions of laws involved- Constitution of India - Article 243


On 18.10.2001, election was conducted for the post of Panchayat President, Malaramanadhi

Panchayat. The revision Petitioner as well as the 1st Respondent contested the said election. The



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revision Petitioner had not completed the work undertaken by him as a Contractor in Public

Works Department as well as in Highways Department. The 1st Respondent gave a

representation on 03.10.2001 that the revision Petitioner is incompetent to contest the election;

but the petition was rejected by the Election Officer. On 21.10.2001, votes were counted and the

revision Petitioner got 578 votes and the 1st Respondent got 407 votes and ultimately, the

revision Petitioner was declared as elected. The revision Petitioner was disqualified to contest

the election, and hence the petition.


The Court held that the revision Petitioner was not having any subsisting contract with

Melaramanadhi Panchayat and prima facie it was clear that he was not attracted by the

disqualifications referred to in the Act.


If a person is disqualified for the purpose of election to the Legislature of a State, he is also

disqualified for being chosen as a member of the Panchayat.

20. Obiter Dicta-

It was clear from the language employed in the section that a person would be disqualified for

election only if he is interested in subsisting contract made with or any work being done for any

Panchayat.



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VI. The President, Kadamalaiputhur Village Panchayat v. The Kadamaliputhur Village

Irrigation Society represented by its President and Mani



3. Bench – Single

4. Name of bench – M. Venugopal ,J

5. Case no- C.R.P. (PD) No. 2359 of 2008 and M.P. No. 1 of 2008

6. Name of the case- The President, Kadamalaiputhur Village Panchayat v. The

Kadamaliputhur Village Irrigation Society represented by its President and Mani


8. Appellant - The President, Kadamalaiputhur Village Panchayat

9. Respondent - The Kadamaliputhur Village Irrigation Society represented by its

President and Mani

10. Case type – Writ petition(civil)

11. Main law points involved- Whether the Petitioner Panchayat was entitled to cutting and

removing trees in view of the fact that the Respondent Association, claimed to have been formed

under the Tamil Nadu Farmers Management of Irrigation System Act, 2000 (i.e) Act 7/2001,

represents the Kadamalaiputhur village irrigation society?


Tamil Nadu Farmers Management of Irrigation Systems Act, 2000 ; Section 49 Tamil Nadu

Panchayat Act; Madras Panchayats Act, 1958 – Rule 3(1) Panchayat Rules, 2001


• Rishiyur Panchayat represented by President Mannargudi Taluk v. Revenue Divisional

Officer, Mannarkudi and Ors. (1971) I MLJ;

• Special Commissioner and Commissioner of Land Administration, Disaster and Disaster

Relief Department, Chennai and two Ors. 2008 (2) CTC 160;

• Ashok Kumar Bajpai v. Dr. Smt. Ranjana Raj Bajpai AIR 2004 Allahabad 107

• Intas Laboratories Private Ltd. v. Novaritis A.G. 2005 (1) CTC 27

14. Area of dispute name – Properties

15. Area Of Dispute Category: Dispute over ownership of Buildings and Lands



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627

16. Provisions of laws involved –a.Tamil Nadu Farmers Management of Irrigation Systems

Act, 2000 –

b. Section 49; Tamil Nadu Panchayat Act,

c. Madras Panchayats Act, 1958 – Rule 3(1) Panchayat Rules, 2001


Petitioners filed present revision petition against order granting relief of interim injunction in

respondent's favour in restraining petitioners from any way cutting or removing trees


Court held that there was conflicting and competing claims made by both parties in present case

and mixed question of fact and law involved in same. Thus, same could not be dealt in present

revision petition .So, on basis of equity, fair play and on principles of natural justice and even as

per law, without going into merits of matter, present revision petition was disposed of with

direction to trial Court to deal the same with main suit afresh. Liberty was given to parties to

raise all factual and legal contentions before trial Court.


No ratio as petition was disposed of with direction to trial Court to deal the same with main suit

afresh.

20. Obiter Dicta-



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VII. R. Krishnaperumal and Ors v. The District Collector/Chairman, District Rural

Development Agency and Ors


2. Court – Madras High Court

3. Bench - Single

4. Name of bench - V.M. Velumani, J.

5. Case name- R. Krishnaperumal and Ors v. The District Collector/Chairman, District

Rural Development Agency and Ors

6. Case no- W.P. (MD) Nos. 17040 to 17042 of 2012 and M.P. (MD) Nos. 2, 2 & 2 of 2012


8. Name Appellants – R. Krishnaperumal and Ors

9. Name of Respondents – The District Collector/Chairman, District Rural Development

Agency and Ors



a. Whether the selection of the project is valid under the Tamil Nadu Village Habitation

Improvement (THAI) scheme in as much as whether the Petitioners are responsible for

selecting the project contrary to the guidelines issued in G.O.(Ms)No. 100, Rural

Development and Panchayat Raj Department, dated 02.12.2011?

b. Whether the petitioners are liable to refund the amounts spent for the project?

12. Grounds of Challenge- Whether the selection of the project is valid under the Tamil

Nadu Village Habitation Improvement (THAI) scheme in as much as whether the

Petitioners are responsible for selecting the project contrary to the guidelines issued in

G.O.(Ms)No. 100, Rural Development and Panchayat Raj Department, dated

02.12.2011?

Whether the petitioners are liable to refund the amounts spent for the project?

13. Reference taken from the case- NIL

14. Area of dispute name - Powers

15. Area of dispute category-Dispute on Powers of ZP/BP/GP and State



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16. Provisions of laws involved- Rule 8(v) of the Tamil Nadu Civil Services (Discipline and

Appeal) Rules

17. Gist of case-

The Government introduced a new State Scheme called Tamil Nadu Village Habitations

Improvement Scheme [THAI] during 2011-2012 and issued guidelines for execution of works

under the said scheme. During the execution of work, the second respondent inspected the work

twice. At the time of second inspection, the work had been executed up to the level of second

layer WBM completed and BT to be provided and a sum of Rs. 4, 94,829/- had been paid to the

Contractor, who had executed the work. The second respondent issued a show cause notice to

the petitioners calling for explanation on the ground that the selection of the work under THAI

scheme is against the guidelines of the said scheme. The first respondent by proceedings

cancelled the said work. The petitioners submitted explanation on 09.11.2012. Without

considering the explanation submitted by the petitioners, the first respondent by the impugned

order, ordered recovery of Rs. 4, 94,829/- from the petitioners.


After much perusal the court on viewed the fact that the petitioner did not have any role to play

in the selection and proposal of Committee, in which the petitioner in W.P.(MD) Nos. 17041 and

17042 of 2012 were members. The proposal was approved by the Gramasabha and the

respondents, the petitioners could not be held responsible for the loss to the Government. The

second respondent had stated that the explanations submitted by the petitioners were considered

and then only, the impugned order of recovery was passed. In the impugned order, there was no

reference to the explanation submitted by the petitioners and there was nothing in the impugned

order to show that the explanation submitted by the petitioners was considered by the

respondents. It was pertinent to note that the Village Panchayat had passed a resolution for

treating the improvement of the road in question as Panchayat Project and permission from the

first respondent to pay a sum of Rs. 4,94,829/- from the Village Panchayat Fund to THAI

scheme. The writ petitions were allowed.


Under Rule 8(v) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules a show cause

notice should be issued and explanation of the concerned Officer must be considered before

passing the impugned order.



983

630

20. Obiter Dicta-

The petitioner did not have any role to play in the selection and proposal of Committee.

Secondly, the proposal was approved by the Gramasabha and the respondents, the petitioners

could not be held responsible for the loss to the Government.



984

631

VII. N. Chidambaram v. The Block Development Officer, Panchayat Union Office

1. State -Tamil Nadu


3. Bench - Single

4. Name of bench – R. Mahadevan, J.

5. Case no- W.P. (MD) Nos. 2198 and 7637 of 2012 and 15564 of 2013 and M.P. Nos. 1, 1

and 2 of 2013 and 1 and 2 of 2013); 2014-5-LW 170, 2014Writ LR 928

6. Name of the case- N. Chidambaram v. The Block Development Officer, Panchayat

Union Office


8. Appellant - N. Chidambaram

9. Respondent - The Block Development Officer, Panchayat Union Office


11. Main law points involved- Whether taking away the cheque signing power of the

Petitioner under Section 188(3) of the Tamil Nadu Panchayats Act by respondent 1 is

justifiable?


Legality of taking away the cheque signing power of the Petitioner under Section 188(3)

of the Tamil Nadu Panchayats Act


• Logeswari vs. The District Collector W.P.(MD)No.139 of 2013

• The Assistant Director (Panchayat) and The Block Development Officer (Village

Panchayat) Pugazhendran President, Brammapuram Village Panchayat, Katpadi Panchayat

Union vs. B.G. Balu S/o. Gopal, Village Panchayat AIR 2005 Mad 370

• Calangute Vs. The Additional Director Of Panchayat-Ii And Ors. Civil Appeal No.4832

Of 2012


15. Area of Dispute Category – Cancellation.

16. Provisions of Laws Involved- Constitution Of India - Article 243; Tamil Nadu District

Municipalities Act, 1920 - Section 37; Tamil Nadu Panchayats Act, 1994



985

632

17. Gist of case – The President of Poolam Panchayat Board, Poolam Village, Nanguneri Taluk,

Tirunelveli District made a representation, on 19.01.2012, before the Respondent seeking to take

action against the Vice President for failing to attend the Panchayat Board Work and refusing to

sign the Panchayat cheque. The third Respondent herein sent a communication, dated

02.02.2012, directing the Petitioner to submit his explanation as to why he had not signed the

Panchayat cheques. On 18.02.2012, the Petitioner approached the third Respondent and

explained as to why he is refusing to act as a co-signatory to the cheques to be signed for and on

behalf of the Panchayat. Not satisfied with the explanation offered by the Petitioner, the first

Respondent, by the impugned order, dated 04.05.2012, divested the power of cheque signing

power of the Petitioner. Challenging the order of the District Collector, Tirunelveli on taking

away the cheque signing power of the Petitioner under Section 188(3) of the Tamil Nadu

Panchayats Act, 1994 the petitioner had also sought for a direction to the first Respondent to

restore the cheque signing power of the Petitioner.


Court held that the first Respondent was not justified in invoking the jurisdiction under Section

203 of the Act to divest the President of her cheque signing power, therefore the Court set aside

the order. The writ Petitions were allowed.


The statutory power given to the President of the Panchayat or Vice President cannot be taken

away by the Inspector of Panchayat, by exercising the emergency powers.

20. Obiter Dicta-

The power to sign cheque was a statutory power conferred on the President and Vice President

under Sub-Section (3) of Section 188 of the Act.



986

633

VIII. Dr. Nedunchezhiyan Engineering College represented by its Administrative Officer,

K. Senthil v.The State of Tamil Nadu And Neyveli Educational Trust rep. by its Secretary

M. Natarasan v.The State of Tamil Nadu



3. Bench – Single

4. Name of bench - K. Chandru, J.

5. Case no- W.P. Nos. 7981 and 22142 of 2009

6. Name of the case- Dr. Nedunchezhiyan Engineering College represented by its

Administrative Officer, K. Senthil v.The State of Tamil Nadu and Neyveli Educational Trust

rep. by its Secretary M. Natarasan v.The State of Tamil Nadu


8. Name of Appellant - Dr. Nedunchezhiyan Engineering College represented by its

Administrative Officer, K. Senthil

9. Name of Respondent - State of Tamil Nadu

10. Case type -Writ petition(civil)

11. Main law points involved- Whether Rule 15, a subordinate legislation can override the

substantive provisions of the Act such as Sections 171(1), 172 and 176. ?

12. Grounds of challenge- Scope of Rule 15, a subordinate legislation to override the

substantive provisions of the Act such as Sections 171(1), 172 and 176


• T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors.(2002) 8 SCC 481

• Sriram Educational Trust represented by its Chairman v. The President, 89, Perumalpattu

Panchayat Union, Thiruvallur Taluk and District 2008 (1) CTC 449

• The President, K.Vellakulam Panchayat, Kallikudi Chatram, Madurai District v. Kamaraj

College of Engineering and Technology, Managing Board rep. by its Secretary, S.P.G.C.

Srimurugan: 2009 (5) CTC 289

• State ofTamil Nadu and Ors. v. Ananthi Ammal and Ors.: (1995) 1 SCC 519

• State of M.P. v. G.C. Mandawar 1955 SCR 158

• Sant Lal Bharti v. State of Punjab 1988 SCR (2) 107



987

634

• R. K.Garg v. Union of India (1981) 4 SCC 675

• Morey v. Doud; Secretary of Agriculture v. Central Roig Refining Co.

• Sri Krishna Das v. Town Area Committee, Chirgaon: (1990) 3 SCC 645

14. Area of dispute- Finance

15. Area Of Dispute Category - Tax on Income

16. Provisions of Laws Involved - Panchayat Act - Sections 168, 171, 171(1), 172 and 176 -

Rule 15; Constitution of India - Articles 14 and 243H.


The Petitioners run educational institutions located under the third Respondent - Thozhudur

Panchayat and Marungur Panchayat respectively. Vide orders dated 17.04.09 and 25.02.09 the

Respondent Panchayats respectively sought to tax the Petitioner institutions for property tax in

accordance with the order of the first Respondent dated 05.03.2008 in G.O.Ms. 38 Rural

Developments and Panchayat Raj. The petitioners challenged this by way of this case therebt

praying to call for the records relating to the order of the first respondent in G.O.Ms.38 Rural

Development and Panchayat Raj (PR-1) Department and consequential orders of the third

respondent and quash the same.

18. Operating portion of the judgement –

Rule 15 of Panchayat Act is a subordinate legislation which cannot override the substantive

provisions of the Act such as Sections 171(1), 172 and 176. Section 171(1) mandates the Village

Panchayat to levy house tax on all the houses of the Village Panchayat.Examining the provisions

of the Panchayat Act the Court rejected the challenge of the Petitioners to the vires of the

Panchayats’ decision to impose property tax on the Petitioner institutions saying exemptions

from tax cannot be claimed, unless it is granted to a particular category specified there in. Writ

petitions stood dismissed.


Courts cannot review the wisdom or advisability or expediency of a tax as the court has no

concern with the policy of legislation, so long as they are not inconsistent with the provisions of

the Constitution. It is only where there is abuse of its powers and transgression of the legislative

function in levying a tax; it may be corrected by the judiciary and not otherwise.



988

635

20. Obiter Dicta-

Once a Village Panchayat or Panchayat Union takes a decision to grant exemption in favour of

one or other class of buildings, only in that case no discrimination can be made between two

similarly situated persons and no order can be passed in an arbitrary manner.



989

636

IX. P. Soodamani v. The Tamil Nadu State Election Commission


2. Court - High Court of Madras ( Madurai Bench)

3. Bench – Single

4. Name of bench -T.S. Sivagnanam, J.

5. Case no- W.P. (MD) No. 15151, 15290, 14999 of 2014 and M.P. (MD) No. 1, 2 and 3 of

2014

6. Name of the case- P. Soodamani v. The Tamil Nadu State Election Commission


8. Name of Appellant - P. Soodamani

9. Name of Respondent - The Tamil Nadu State Election Commission


11. Main law points involved- Whether a matter involving withdrawal of nomination should

be considered an election petition u/s 259 of the Tamil Nadu Panchayat Raj Act, 1994 or the

same can be filed as a Writ petition u/a 226 of the Constitution?

12. Grounds of challenge- Whether a matter involving withdrawal of nomination should be

considered an election petition u/s 259 of the Tamil Nadu Panchayat Raj Act, 1994 or the same

can be filed as a Writ petition u/a 226 of the Constitution.


• Harnek Singh vs. Charanjit Singh and Ors. Civil Appeal No. 6325 of 2005 [Arising out

of S.L.P. (C) No. 21724 of 2003]

• N. P.Ponnuswami vs. Returning Officer, Namakkal Constituency and Ors. Boddula

Krishnaiah and another vs. State Election Commissioner, A.P.and others AIR 1952 SC 64

• M. Vaikundaraj vs.State of Tamil Nadu 1996 (1) CTC 296

• C.S. Bhuvaneswari vs. The State Election Commissioner

• Lakshmi Charan Sen and Ors. vs. A.K.M. Hassan Uzzaman and Ors. Civil Appeals Nos.

739, 740, 741 and 742 and Transferred case No. 3 of 1982

• State of U.. P.and others etc. vs. Pradhan Sangh Kshettra Samiti and others etc.

• All India Anna Dravida Munnetra Kazhagam rep. by its Fisheries Wing Secretary, D.

Jayakumar, M.L.A. vs. The State Election Commissioner rep. by D. Chandrasekaran, State



990

637

Election Commissioner and Ors W.P. Nos. 39400, 39457, 39458, 39459, 39460, 39462, 39471,

39535, 39595, 39635 and 39713 of 2006 and M.P. Nos. 1 to 6 of 2006 in W.P. No. 39400 of

2006, 1 and 2 of 2006 in W.P. No. 39458 of 2006 and 1 of 2006 in W.P. Nos. 39438, 39459,

39460, 39462, 39471, 39535, 39595, 39635 and 39713 of 2006


15. Area Of Dispute Category – Cancellation

16. Provisions of Laws Involved - Constitution Of India; Representation Of The People

Act, 1951 - Section 5; Tamil Nadu Panchayats Act, 1994.

17. Gist of case-

This writ petition consisted of 3 petitions as clubbed together. All the three Petitioners filed

nominations for election to the post of Councilor of the Wards in the Respondent local bodies.

The Petitioner in W.P. (MD) No. 15151 of 2014 filed nomination for being elected to the post of

the Seventh Ward Member of Muthukulathur Union, Ramanathapuram District. The Petitioner

in W.P. (MD) No. 15290 of 2014 filed nomination for the post of the Ninth Ward Member of

Dindigul Municipal Corporation. The Petitioner in W.P. (MD) No. 14999 of 2013 filed

nomination for the post of 85th Ward Member of Madurai City Municipal Corporation. In the

instant case, the nominations filed by the petitioners have been rejected as having been

withdrawn. The petitioners challenged the action of the Returning Officer in withdrawal of the

nominations alleging fraud.


The Court held that Petitioners had not made out any grounds for interference by the Honourable

Court. Hence the petitions were dismissed for the said post.


There cannot be any dispute that there could be a challenge to the election of the appellant by

filing an election petition on the ground of improper acceptance of his nomination inasmuch as

the appellant was not an elector on the electoral roll of Lalgudi Assembly Constituency.

20. Obiter Dicta-

Whatever may be the reason for not accepting the nomination form, the terminology used is

'rejection'. Therefore, the rejection can be on account of material defect, furnishing of wring

particulars, false statement, fraud etc.



991

638

X. T. Paul Raj v. District Collector and Another

1. State - State of Tamil Nadu



4. Name of bench -N. Paul Vasantha Kumar and P. Devadass, JJ

5. Case no- W.P.(MD). No. 12757 of 2013 & M.P. No. 1 of 2013

6. Name of the case- T. Paul Raj v. District Collector and Another


8. Name of Appellant - T. Paul Raj

9. Name of Respondent - District Collector and Another


11. Main law points involved- Whether the act of respondent of not recognising the

Panchayat’s resolution is constitutional?

12. Grounds of Challenge- Constitutionality of the act of respondent of not recognising the

Panchayat’s resolution

13. Reference taken from the case- P.N. Kaushal and Ors. vs. Union of India (UOI) and

Ors;N. Nagendra Rao & Co. vs. State of Andhra Pradesh


15. Area of Dispute Category – Dispute among Panchayats and between Panchayat and

State Agency

16. Provisions of Laws Involved - Tamil Nadu Panchayats Act, 1994


The Writ Petition was filed by way of a Public Interest Litigation for the issue of a Writ of

Mandamus forbearing the Respondents from opening TASMAC Shop (liquor shop) at

Vadamalapuram Village, Sivakasi. The local Panchayat, upon noticing a proposal for opening a

TASMAC shop, passed a unanimous resolution, resolving that the District Collector should not

grant permission for opening any Liquor Shop in the said village, on the ground, inter alia that

the area houses a High School that is attended by girls from six neighboring villages. The



992

639

objections were duly forwarded to Respondent No 1 and Respondent No 2; however the second

Respondent, without considering the said objections, submitted a proposal to the first

Respondent for opening a Liquor Shop in the said village premises. That further, in the said

communication, it was stated that no objections were received from the public, thereby affirming

that the objection raised by the said village Panchayat was not considered at all. Against this the

case was filed.


Court was of opinion that views expressed by village people and unanimous resolution passed by

village panchayat seeking not to grant permission to open liquor shop within village should be

given due weightage by Respondents, whose sole intention, as per written instruction given by

second Respondent, was only to fetch more income to Government by sale of liquor. Hence

Petition was allowed.


Unanimous decision by villagers for a moral cause need to be re- considered especially when it

pertains to approval for opening a TASMAC shop.

20. Obiter Dicta-

Any unanimous resolution panchayat when passes and if the same was communicated to the

authority, by Registered Post, the authority cannot later on state that the message was not

communicated.



993

640

XI. S. Geetha v. State of Tamil Nadu, rep. by Secretary to Government, Rural

Development and Panchayat Raj Department, Fort St.George, Chennai and The Collector

and Inspector of Panchayats, Thanjavur District, Thanjavur



3. Bench – Single

4. Name of bench – The Honourable Mr. Justice V. Dhanapalan

5. Case no- Writ Petition No. 21101 of 2011 and M.P. No. 1 of 2011)

6. Name of the case- S. Geetha v. State of Tamil Nadu, rep. by Secretary to Government,

Rural Development and Panchayat Raj Department, Fort St.George, Chennai and The Collector

and Inspector of Panchayats, Thanjavur District, Thanjavur


8. Name of Appellant - S. Geetha

9. Name of Respondent - State of Tamil Nadu, rep. by Secretary to Government, Rural

Development and Panchayat Raj Department, Fort St.George, Chennai and The Collector and

Inspector of Panchayats, Thanjavur District, Thanjavur


11. Main law points involved- Whether the Court can exercise its extraordinary jurisdiction

under article 226 of the Constitution where an order is passed by the Government u/s 205 of

Panchayati Raj Act, 1994?

12. Grounds of challenge- Power of the Court to exercise its extraordinary jurisdiction

under article 226 of the Constitution where an order is passed by the Government u/s 205 of



• Maria Selvam v. Government of Tamil Nadu Rep. by the Secretary Department of Local

Administration and Rural Development and Anr 2006 (3) MLJ 537

• C. Subramanian v. Government of Tamil Nadu Rep. by the District Collector Tirunelveli

District and Ors 2010 (5) LW 601

• District Collector cum Inspector of Panchayats Villupuram and Ors. v. S. Senthamil

Selvi and Anr 2009 (1) CTC 356



994

641

14. Area of dispute- Disqualification

15. Area Of Dispute Category - Office of profit related

16. Provisions of Laws Involved- Constitution of India - Article 226; Tamil Nadu

Panchayats Act - Section 205, Tamil Nadu Panchayats Act - Section 205(1), Tamil Nadu

Panchayats Act - Section 205(11), Tamil Nadu Panchayats Act - Section 205(12).


The Petitioner was the President of Thepperumanallur Panchayat in Thanjavur District. On the

allegation of irregularity the second Respondent issued a notice on 3.12.2009 under Section

205(1) of the Tamil Nadu Panchayats Act, and thereafter, the Petitioner filed her explanation to

the charges levelled against her in the said proceedings/show cause notice and the proceedings

initiated under Section 205 of the said Act, were concluded by convening a meeting of the

Panchayat by the Tahsildar of the concerned jurisdiction in respect of the removal proceedings.

Thereafter a second show cause notice was issued to the Petitioner, for which also, the Petitioner

gave explanation on 7.7.2010 and finally, the second Respondent passed the order under Section

205(11) of the Act removing the Petitioner from the post of Panchayat President and the order of

removal has been published in the Tamil Nadu Government Gazette Extraordinary dated

6.9.2010.


The court took into account the fact that the Petitioner had filed the said appeal pursuant to the

judgment of the Division Bench of this Court and also that the said appeal had to be disposed of

before the ensuing Election process commenced, which would had an impact on the participation

of the Petitioner in the Election process. Writ Petition was disposed of with no costs.


When there is a violation of principle of natural justice in removing the President of the Village

Panchayat from his office, as against the unanimous view of the members of the village

panchayat the existence of alternative remedy is not a Bar to invoke Article 226 Constitution of

India.

20. Obiter Dicta-

---.



995

642

XII. Vengaivasal Village Panchayat by its President v. The State of Tamil nadu by its

Secretary to the Revenue Department, The Commissioner of Land Administration, The

District Collector and The Commissioner, St. Thomas Mount Panchayat Union




4. Name of Bench – P.D. Dinakaran and S.R. Singaravelu, JJ

5. Case no- W.A. No. 977 of 1998

6. Name of the case- Vengaivasal Village Panchayat by its President v. The State of

Tamil nadu by its Secretary to the Revenue Department, The Commissioner of Land

Administration, The District Collector and The Commissioner, St. Thomas Mount Panchayat

Union


8. Name of Appellant - Vengaivasal Village Panchayat by its President

9. Name of Respondent - The State of Tamil nadu by its Secretary to the Revenue

Department, The Commissioner of Land Administration, The District Collector and The

Commissioner, St. Thomas Mount Panchayat Union

10. Case type – Writ Appeal (civil)

11. Main law points involved- Whether the action of the Government, first respondent, in

passing the impugned government order, viz., G.O.(Grade) No. 239, Revenue Department, dated

27.2.1997, by exercising the power conferred under Board Standing Order 21, reclassifying the

public road, which power vests with the appellant/village panchayat (local body) whose vested

right, power and jurisdiction are well defined under the provisions of the Tamil Nadu Panchayats

Act, 1944, ignoring the concept of Panchayat Raj enabling them to function as institutions of

self-government under Article 243G of the Constitution of India, is valid.

12. Grounds of challenge- Validity of the action of the Government, first respondent, in

passing the impugned government order, viz., G.O.(Grade) No. 239, Revenue Department, dated

27.2.1997, by exercising the power conferred under Board Standing Order 21, reclassifying the

public road, which power vests with the appellant/village panchayat (local body) whose vested

right, power and jurisdiction are well defined under the provisions of the Tamil Nadu Panchayats



996

643

Act, 1944, ignoring the concept of Panchayat Raj enabling them to function as institutions of

self-government under Article 243G of the Constitution of India


• Government of Andhra Pradesh and Anr. v. Syed Akbar, Civil Appeal Nos. 6546 of 1999

and 4110 of 2000

• Nasiruddin v. Sita Ram Agarwal, Civil Appeal No. 5077 of 1998


15. Area of dispute category – Dispute over ownership of buildings and land.

16. Provisions of Laws Involved - Tamil Nadu Panchayat Act, 1944 ;Tamil Nadu

Panchayats (Amendment) Act, 1994 - Section 2(28), Tamil Nadu Panchayats (Amendment) Act,

1994 - Section 125, Tamil Nadu Panchayats (Amendment) Act, 1994 - Section 125(1), Tamil

Nadu Panchayats (Amendment) Act, 1994 - Section 125(2); Land Acquisition Act - Section 16,

Land Acquisition Act - Section 54, Land Acquisition Act - Section 54(A); Constitution of India -

Article 40, Constitution of India - Article 243, Constitution of India - Article 243A to 243O;

Andhra Pradesh Board Standing Order - Order 21, Andhra Pradesh Board Standing Order -

Order 90(32).


The Government/first respondent, by G.O.(Grade) No. 239, Revenue Department, dated

27.2.1997, which is impugned in the writ petition, proposed to reclassify the property in Survey

Nos. 237 and 238 of Vengaivasal Village from Vandi-patti Poromboke (cart-track) to Natham

Poromboke, and to assign the same to the last grade servants of the Raj Bhavan without any

consent of the appellant/Village Panchayat by way of appropriate resolution, under the pretext

that the appellant/Village Panchayat had not responded to the request of the Collector made in

his letter dated 17.2.19897 requiring the appellant/ Village Panchayat to pass necessary

resolution to reclassify the impugned land for the purpose of assigning the same to the last grade

employees of the Raj Bhavan. Based on the strength of the impugned G.O.(Grade) No. 239,

Revenue Department, dated 27.2.1997, the Commissioner/fourth respondent, in his letter dated

12.3.1997 required the appellant/Village Panchayat to pass appropriate resolution for

reclassifying the Vandi-patti Poromboke (cart-track) to Natham Poromboke. Hence, the writ

petition.



997

644


Even before getting an appropriate resolution from the appellant/Village Panchayat, the

Government had chosen to reclassify the Vandi-patti poromboke (Cart-Track) land to Natham

poromboke land by G.O.(Grade) No. 239dated 27.2.1997, by exercising the power conferred

under Board Standing Order 21, ignoring the relevant provision of Section 125(1) read with

Section 2(28) and 125(2) of the Act. Section 2(28). The court therefore held that in the instant

case, the impugned G.O. was passed ignoring the provisions of Sections 125(1) read with

Sections 2(28) and 125(2) of the Act, as no steps had been taken by the Government to issue any

notification till date, in a manner contemplated under law. Therefore, the impugned order was

set aside.


The Government shall not resort to exercise their powers under the Board Standing Orders

which have no statutory force, ignoring the statutory provisions, viz., Section 125(2) of the Act.

20. Obiter Dicta-

The power conferred on the Government under Section 125(2) of the Act is not absolute and

independent but the same is subject to the power conferred under Section 125(1) of the Act

protecting the vested right of the village panchayats, which is endowed with such powers and

authority as may be necessary to enable them to function as institutions of self-government, as

provided under Article 243G of the Constitution of India.



998

645

XIII. Kamaraj College of Engineering and Technology v. The President



3. Bench – Single

4. Name of Bench – P. Jyothimani, J.

5. Case no- W.P. No. 1766 of 2005 and W.P.M.P. No. 1773 of 2005 and W.V.M.P. No. 4

of 2006

6. Name of the case- Kamaraj College of Engineering and Technology v. The President


8. Name of Appellant - Kamaraj College of Engineering and Technology

9. Name of Respondent - The President


11. Main law points involved- Whether the petitioner can be exempted from taxation as per

rule 15 of Tamil Nadu Village Panchayats (Assessment and Collection of Taxes) Rules 1999?

12. Grounds of challenge- Whether the petitioner can be exempted from taxation as per rule

15 of Tamil Nadu Village Panchayats (Assessment and Collection of Taxes) Rules 1999?



15. Area Of Dispute Category - Leasing

16. Provisions of Laws involved – Tamil Nadu Panchayats Act, 1994 - Section 171, Tamil

Nadu Panchayats Act, 1994 - Section 172, Tamil Nadu Panchayats Act, 1994 - Section 174,

Tamil Nadu Panchayats Act, 1994 - Section 176 (1), Tamil Nadu Panchayats Act, 1994 - Section

176(1), Tamil Nadu Panchayats Act, 1994 - Section 242.


This writ petition was filed against the order of the respondent dated 02.08.2004 confirming the

assessment of house tax for the buildings bearing door Nos. 5/279 to 5/283 under Assessment

Nos. 853 to 857 owned by the petitioner institution and for a direction against the respondent to

grant exemption to the buildings owned by petitioner institution in respect of payment of house

tax and also refund of tax already paid.



999

646


Perusing the facts the court could derive that under the second proviso Rule 15 of the Tamil

Nadu Panchayats (Assessment and Collection of Taxes) Rules, 1999, the petitioner institution

was not covered, even on the general term the house building used for the educational purpose

include the educational institutions which were either aided or unaided or run on self financing

pattern and were entitled for exemption from payment of house tax. Therefore, the court

considered the view that the petitioner’s institution was entitled for exemption as per the Rules.

In view of the same, the writ petition stood allowed.


The educational institution (not commercial in nature) exempted from levy of house tax

immediately before the commencement of the Act shall continue to be exempted under the Act..

20. Obiter Dicta-

Government has framed the rules by virtue of the powers under the Tamil Nadu Panchayats Act,

1994 and under the rules called Tamil Nadu Village Panchayats (Assessment and Collection of

Taxes) Rules 1999. Rule 15 which applies to exemption in respect of specified classes from the

payment property tax, specifically states that the buildings used for educational purposes

including hostels, libraries which are open to the public and public buildings used for charitable

purpose of sheltering the destitutes or animals are exempted from the payment of property tax.



1000

647

STATE OF UTTARAKHAND

I. Souninder Singh Hooda v. State of Uttaranchal and Ors

1. State- Uttarakhand

2. Court- The High Court Of Uttarakhand at Nainital


4. Name of Bench- Rajeev Gupta, C.J. and Prafulla C. Pant, J.

5. Case No.- Writ Petition No. 353 of 2004 (M/B)

6. Name of the Case - Souninder Singh Hooda v. State of Uttaranchal and Ors.


8. Appellant- Souninder Singh Hooda

9. Respondent- State of Uttaranchal and Ors.



Whether is it valid for the relatives or husband of the members or chairman to attend Zila

Panchayat as her nominee or representative?

12. Grunds of Challenge-

Legality of the relatives or husband of the members or chairman to attend Zila Panchayat as her

nominee or representative.





Section 18 of U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961

17. Gist of Case-

It was contended by the Petitioners that in the meetings of Zila Panchayat, Udham Singh

Nagar, persons other than the members of the Zila Panchayat were permitted to participate,

which was against the express provisions of law. The Petitioner, in the writ petition,

specifically averred that one Ishwari Prasad Gangwar, who was the husband of Mrs. Sushila



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648

Gangwar, Chairman of the Zila Panchayat, participated in the meetings of the Zila Panchayat

held on 16-07-2003 and 20-11-2003. Under Uttar Pradesh Kshettra Panchayat and Zila

Panchayat Adhiniyam, 1961 (hereinafter referred to as 'the Adhiniyam, 1961'), contended that

the participation of any person, other than the elected or ex-officio members of the Zila

Panchayat, was not permissible in law.


In view of the Government Order dated 10-03-1998, no relative of a women member or office

bearer, which would include the Chairman of the Zila Panchayat also, can attend or participate in

the meetings of the Zila Panchayat. The Court directed that in the meetings of Zila Panchayat to

be held in future, no relative (not even the husband) of the women member or Chairman of the

Zila Panchayat shall be permitted to attend or participate in the meeting not even in the capacity

of a nominee or the representative of an ex-officio member, be it a Council of Ministers, a

Member of Parliament or a Member of Legislative Assembly. The authorities concerned were

further directed to carry out the above directions in letter and spirit. With the above directions,

the writ petition was disposed of.


The absence of a provision in the Adhiniyam, 1961 allowing a member of the Council of the

Ministers to nominate a person as his representative to attend the meeting of the District

Planning Committee on his behalf would necessarily mean that a representative/nominee of a

minister is not entitled to attend the meetings of the Zila Panchayat and the other committees of

the Zila Panchayat constituted under the Adhiniyam, 1961.




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II. Ramesho Devi Kashyap v. State of Uttarakhand and Anr.




4. Name of Bench- Prafulla C. Pant, J.

5. Case No.- Writ Petition (S/S) No. 111 of 2014

6. Name of the Case - Smt. Ramesho Devi Kashyap Vs. State of Uttarakhand and Anr.


8. Appellant- Smt. Ramesho Devi Kashyap

9. Respondent- State of Uttarakhand and Anr.



i. Whether proper procedure was followed as per Rule 3 and Rule 4 of Uttar Pradesh

Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, UpPramukhs,

Adhyakshas and Upadhyakshas) Enquiry Rules 1997 in conducting the enquiry

ii. Whether the preliminary enquiry report conducted by the respondent No. 2, is illegal

and without jurisdiction?


Legality of the procedure followed under Rule 3 and Rule 4 of Uttar Pradesh Kshettra

Panchayats and Zila Panchayats (Removal of Pramukhs, UpPramukhs, Adhyakshas and

Upadhyakshas) Enquiry Rules 1997 in conducting the enquiry


14. Area of Dispute- Removal and No confidence motion

15. Area of Dispute Category-Inappropriate conduct of Sarpanch and members

16. Provisions of Law Involved- Section 29 of the Uttar Pradesh Kshettra Panchayats and

Zila Panchayats Act, 1961; Rules 3, 4 and 5 of the Uttar Pradesh Kshettra Panchayats and Zila

Panchayats (Removal of Pramukhs, Up-Pramukhs, Adhyakshas and Upadhyakshas) Enquiry

Rules 1997



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17. Gist of Case-

The petitioner was elected as Chairman of the Zila Panchayat, Haridwar, in the elections held in

the year 2005. She took over the charge of said office on 18-11-2005, and since then was

discharging her duties. The Vice- Chairman and nine other members of the Zila Panchayat, with

ulterior motive to settle the political score, made false complaint to respondent No. 1 with eight

allegations against the petitioner. The respondent appointed Respondent no. 2(R2) as an Enquiry

Officer to conduct the preliminary enquiry in the matter. R2 issued a notice to the petitioner to

give reply against each allegation mentioned in the complaint.

It was alleged by the petitioner that neither the compliance of Rule 3, nor that of Rule 4 of the

Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, UpPramukhs,

Adhyakshas and Upadhyakshas) Enquiry Rules 1997, were made, as such, the preliminary

enquiry report conducted by the R 2 was illegal and without jurisdiction. It was submitted that

no show-cause notice was given to the petitioner within the time prescribed, nor any reply could

have been sought under the law from the petitioner by the R2 in respect of new allegations made

in the subsequent complaints made against the petitioner, as the subsequent complaints were not

supported with the affidavits as required under the rules.


The court held that an elected Adhyaksha of Zila Panchayat has a statutory right to exercise his

functions and discharge his duties for which he is elected and he can neither be removed nor his

powers can be curtailed, otherwise than in accordance with law. Such elected authority can only

be removed by an order of removal passed by the State Government, if the authority is found

guilty of gross misconduct or abuse of powers. Permitting the husband to sit in the office of the

Zila Panchayat independently and to direct the subordinate staff to act in a particular manner

against the rules amounts to gross abuse of powers by the person holding the office.

The Court after analyzing the preliminary enquiry report did not find any illegality on the part of

the State Government whereby the petitioner was divested of administrative and financial

powers, and Commissioner, Garhwal Division, was appointed to hold the final enquiry. Thus the

writ petition was dismissed. Directions were given to the Enquiry Officer (Commissioner,

Garhwal Division) that while conducting the final enquiry which was initiated against the

petitioner, shall not be influenced by the observations made in the present judgment.



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The proviso to Section 29 (1) of Uttar Pradesh Kshettra Panchayats and Zila Panchayats Act,

1961, clearly empowered the State Government to divest the Adhyaksha of Zila Panchayat from

discharging his/her administrative, financial powers if such person is prima facie found to have

committed financial and other irregularities. Section 29(1) further empowered the State

Government to remove the Adhyaksha from his office after giving reasonable opportunity for

explanation if such person is found to have abused the powers vested in him.




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III. Sh. Rishipal Singh Rana S/o Sh. Shivnath Singh and two Ors. and Shri

Dayakishan Kaloni S/o Shri Ishwar Dutt Kaloni and four Ors. V. State of Uttaranchal

through Chief Secretary Uttaranchal Shashan and six Ors.



3. Bench- Division

4. Name of Bench- Brahma Singh Verma and Prafulla C. Pant, JJ.

5. Case No.- Writ Petition (PIL) No. 1197 of 2005 (M/B) & Writ Petition (M/S) No. 1125

of 2007

6. Name of the Case - Sh. Rishipal Singh Rana S/o Sh. Shivnath Singh and two Ors. and

Shri Dayakishan Kaloni S/o Shri Ishwar Dutt Kaloni and four Ors. Vs. State of Uttaranchal

through Chief Secretary Uttaranchal Shashan and six Ors.


8. Appellant- Sh. Rishipal Singh Rana S/o Sh. Shivnath Singh and two Ors. and Shri

Dayakishan Kaloni S/o Shri Ishwar Dutt Kaloni and four Ors.

9. Respondent- State of Uttaranchal through Chief Secretary Uttaranchal Shashan and six

Ors.



Whether a resolution passed by zila panchayat for the construction of a school building by

Shiksha Samiti is valid and legal under under Section 107 of the Uttar Pradesh (Uttaranchal)

Kshetriya Panchayat and Zila Panchayat Adhiniyam 1961?

12. Grounds of Challenge- Legality of the resolution passed by zila panchayat for the

construction of a school building by Shiksha Samiti is valid and legal under under Section 107 of

the Uttar Pradesh (Uttaranchal) Kshetriya Panchayat and Zila Panchayat Adhiniyam 1961.



15. Area of Dispute Category- Dispute over Ownership of Buildings and Land

16. Provisions of Law Involved- Section 107 of Uttar Pradesh (Uttaranchal) Kshetriya

Panchayat and Zila Panchayat Adhiniyam 1961



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17. Gist of Case-

The Principal Secretary, Panchayati Raj, Uttaranchal Shasan by government and as per

resolution the Governor had accorded sanction for transfer property which was under the control

of the Medical Department with certain conditions as contained in the letter to the medical

department for use as a Community Health Centre. It was provided in the conditions that if the

transferred land is used for any other purpose, fresh approval should be obtained. The Governor

accorded sanction to temporarily lease out the said land for a period of 30 years to Respondant

no. 4 for its use without any charges. The court held that lease granted by the State Government

in favor of the respondent No. 4 (Shiksha Samiti) shall be restricted only to the extent of the

area, which is in its possession. The two schools already existed which were run by Zila

Panchayat hence lease could not be given effect to regarding that area.The lease shall be treated

invalid in view of the provisions of Section 107 (2) of the Adhiniyam, because when the lease

was made, two schools of Zila Panchayat were also still continuing as on today. In the public

interest, that part of the land cannot be transferred to the respondent No. 4.


The court quashed the Resolution passed under Section 107 of Uttar Pradesh (Uttaranchal)

Kshetriya Panchayat and Zila Panchayat Adhiniyam 1961. The resolution passed by Zila

Panchayat held that construction of school building by Shiksha Samiti was a work of public

interest and Zila Panchayat had no objection to it. The resolution passed by Zila Panchayat gave

the total land on lease for a period of 30 years to Shiksha Samiti for use of institution by lease

deed. The court held, land was being used for purposes of Zila Panchayat schools as per report

of S.D.M. therefore could not be transferred to Respondent No. 4. The land was never in

possession of Government, although on paper it was transferred in favor of Govt. When lease

was made, two schools of Zila Panchayat were also still continuing thus, lease could not be

given effect regarding that area and lease should be treated invalid in view of provisions of

Section 107 (2) of Adhiniyam. In public interest, that part of land could not be transferred to

Respondent No. 4 (Shiksha Samiti). Therfore Court shall not pass any order which disregards

public interest.


Court shall not pass any order which disregards public interest




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654

IV. Nandan Singh Nayal and Ors. Vs. State of Uttarakhand through Chief Secretary


2. Court- The High Court of Uttarakhand at Nainital


4. Name of Bench- Brahma Singh Verma, J.

5. Case No.- Writ Petition No. 201 (S/S) of 2009

6. Name of the Case - Nandan Singh Nayal and 28 Ors. Vs. State of Uttarakhand through

Chief Secretary


8. Appellant- Nandan Singh Nayal and 28 Ors.

9. Respondent- State of Uttarakhand through Chief Secretary



Whether the Petitioners are entitled for consolidated salary?


Whether the Petitioners are entitled for consolidated salary?


• Atul Bhatt and Anr. v. State Election Commission and Ors. W.P. No. 373 (S/S) of 2003;

• Secretary State of Karnataka v. Uma Devi: (2006) 4 SCC 1

14. Area of Dispute Name- Personnel System

15. Area of Dispute Category- Appointment Related

16. Provisions of Law Involved- Uttar Pradesh Panchayati Raj Act, 1965

17. Gist of Case -

The Petitioners were appointed in the years 2001 and 2002 on different dates, on the basis of

agreement on contract in the office of State Election Commission and Panch Sthaniya

Chunawalaya in various districts of Uttarakhand on the posts of Kanisth Sahayak/Data Entry

Operators and Peon/Chowkidars. Class III employees were paid Rs. 3600/- per month and Class

IV employees were paid Rs.3000/- per month consolidated salary. The Petitioners alleged that

the employees appointed on contract basis in the department on class III and class IV posts were

paid the consolidated salary of Rs. 8020/- and Rs. 6980/- respectively, while they are doing the



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same job which the Petitioners are doing from last many years. The Petitioners also alleged that

nine persons have been adjusted/regularized in the department who have completed three years

service on the basis of contract. Also the State Election Commission Uttarakhand has written

letter to the Secretary Panchayat Raj for increasing the honorarium to the Petitioners, but the

Petitioners are not being paid increased honorarium.


The court held that nothing could be done by the State Election Commission until and unless any

positive response comes from the Government level. The Petitioners had not been able to bring

on record the cogent and reliable documentary evidence regarding the salary being paid to class

III and class IV employees in the department, which they were claiming and since the matter of

increase of consolidated salary of class III and class IV employees engaged on contract basis

was pending before the competent authority and no decision has been taken, no direction could

be issued in respect of enhancement of honorarium to the Petitioners.


It is true that the daily wagers are entitled to get salary equal to the salary that is being paid to

regular employees in view of Secretary State of Karnataka v. Uma Devi (2006) 4 SCC 1,

however in the instant case the Petitioners have not been able to establish that the class III and

Class IV employees in the department are getting the salary which the Petitioners are claiming in

this writ petition.




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V. Lakhmi Chand @ Lakshmi Chand S/o Mukhtyara Vs. District Magistrate and

Ors.






6. Name of the Case - Lakhmi Chand @ Lakshmi Chand S/o Mukhtyara Vs. District

Magistrate and Ors.


8. Appellant- Lakshmi Chand S/o Mukhtya

9. Respondent- District Magistrate and Ors.



Whether the decision of the respondents to bifurcate Gram Panchayat Dallawala into two Gram

Panchayats was reasonable and needed no interference?


Validity of the decision of the respondents to bifurcate Gram Panchayat Dallawala into two

Gram Panchayats




State Agencies

16. Provisions of Law Involved- Section 11(F) of Uttar Pradesh Panchayat Raj Act, 1947

17. Gist of Case-

The Petitioner sought writ in the nature of certiorari quashing the final delimitation list issued by

the Respondents, whereby delimitation of Gram Panchayat Dallawala, Vikas Khand Khanpur,

District Haridwar wasbifurcated into two Gram Panchayats namely Gram Panchayat Dallawala

and Gram Panchayat Joga Wala. The proposal for bifurcation of Panchayat was made by Block

Development Officer, Vikas Khand Khanpur, on the ground that there is a river Solani between



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Dallawala and Jogawala and the distance between Village Jogawala and Village Dallawala is

about 1.5 Km not 2.5 Km. Report of Tehsildar was filed where it is stated that ADO (P) Vikas

Khand, Khanpur, District Haridwar reported that in the Panchayati electoral roll/voter list of

2005, voters from serial No. 1502 to 1598 and person at serial No. 1616 are residing in Village

Dallawala but in the electoral list/voter list, their names are recorded in ward of Jogawala. As per

the report, the total number of members shown in Village Jogawala was 192. Thus the

population of 1265 as shown in Village Jogawala exceeded 1000, therefore, as per provision of

law, new Gram Panchayat could be created.


The court held that since there is a river between the two villages namely Jogawala and

Dallawala, the Delimitation Committee had rightly taken the decision to bifurcate Gram

Panchayat Dallawala into two Gram Panchayats. The court agreed with the State that Committee

has rightly took the decision as the population is exceeding one thousand in the village

Jogawala.. The petition was rejected.


As per Section 11-F of U.P. Panchayat Raj Act, 1947, the State Government may by notification

declare any area comprising a village or group of villages, having population of 300 in hill area

and 1000 in plane area as a Panchayat area with a proviso that the population should not exceed

1000 in hill area and 5000 in plane area.




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VI. Gulfam Ali and two Ors. Vs. State of Uttarakhand and Anr





5. Case No.- Writ Petition (M/S) No. 1252 of 2009

6. Name of the Case - Gulfam Ali and two Ors. Vs. State of Uttarakhand and Anr.


8. Appellant- Gulfam Ali and two Ors

9. Respondent- State of Uttarakhand and Anr.



Whether the impugned Government Order violates Section 32(4) of the Uttar Pradesh Panchayat

Raj Act, 1947?

12. Grounds of Challenge- Legality of the Government Order under Section 32(4) of the

Uttar Pradesh Panchayat Raj Act 1947.




States

16. Provisions of Law Involved- Uttar Pradesh Panchayat Raj Act, 1947 - Section 29, Uttar

Pradesh Panchayat Raj Act, 1947 -Section 32, Uttar Pradesh Panchayat Raj Act, 1947 - Section

32(4), Uttar Pradesh Panchayat Raj Act, 1947 - Section 41; Uttar Pradesh Zamindari Abolition

and Land Reforms Act, 1950 - Section 125A; Uttar Pradesh Zamindari Abolition and Land

Reforms Rules - Rules 178, Uttar Pradesh Zamindari Abolition and Land Reforms Rules - Rules

178(1), Uttar Pradesh Zamindari Abolition and Land Reforms Rules - Rules 178(4), Uttar

Pradesh Zamindari Abolition and Land

Reforms Rules - Rules 180, Uttar Pradesh Zamindari Abolition and Land Reforms Rules – Rules

187(1); Uttar Pradesh Panchayat Raj (Amendment) Act, 2003Section 32(4) of the Uttar Pradesh

Panchayat Raj Act, 1947 and Rule 187(1) and 178(4) of the Rules framed under the Act.



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17. Gist of Case-

The present writ was filed in the nature of certiorari to quash and strike down the Government

Order No. 128/XXIV(1)/ 2009- 05/09 dated 20th July, 2009. It was stated that Rules 178(1) of

the Uttar Pradesh Zamindari Abolition and Land Reforms Rules clearly envisaged that

administration of the gram funds shall be in the hands of the gram panchayat alone. Rule 178(4)

provided that the account of all income and expenditure of the Gram Fund shall be maintained

by the Pradhan. The account shall be closed and balanced at the end of every month and shall be

examined and passed by the gram panchayat at a meeting in the next following month. Thus the

impugned Government Order gave sole control over the fund to the Chairman of the committee

and the Gram Panchayat Adhikari and the same was in clear contravention and violation of Rule

178 of the Act. It was further stated that the impugned G.O. seeked to amend the statutory

provisions of law by an executive order, which was not permissible under law.


Clause 3 of the impugned Government Order was not in conformity with the provisions of

Section 32(4) of the Uttar Pradesh Panchayat Raj Act, 1947 and the same was also in violation

of the Rule 178(1) and Rule 178(4) of the Uttar Pradesh Zamindari Abolition and Land Reforms

Rules framed thereunder. Clause 3 of the impugned government Order being violative of Section

32 of the Uttar Pradesh Panchayat Raj Act, 1947 was declared ultra vires and accordingly Clause

3 of the said Government Order was struck down. Writ petition was allowed.


The Government Order cannot override the provisions of the Uttar Pradesh Panchayat Raj Act,

1947.




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VII. Ashwini Kumar and Ors. Vs. State of Uttarakhand and Ors.

1. State- Uttrakhand



4. Name of Bench- Sudhanshu Dhulia, J.

5. Case No.- Writ Petition (S/S) No. 111 of 2014

6. Name of the Case- Ashwini Kumar and Ors. Vs. State of Uttarakhand and Ors.


8. Appellant- Ashwini Kumar and Ors.

9. Respondent- State of Uttarakhand and Ors.



Whether the members of various Panchayats where they were presently working as a

"Secretary" under Section 25A of the Uttar Pradesh Panchayat Raj Act, 1947 can be sent

back to their parent departments working for so many years?

12. Grounds of Challenge- If the members of various Panchayats where they were presently

working as a 1947 can be sent back to their parent departments working for so many

years.


• Uttar Pradesh Gram Panchayat Adhikari Sangh and Ors. vs. Daya Ram Saroj and Ors.

2007 (2) SCC 138;

• Kunal Nanda vs. Union of India & Anr. [(2000) 5 SCC 362]



16. Provisions of Law Involved- Section 25 and Section 25A Uttar Pradesh Panchayat Raj

Act, 1947

17. Gist of Case-

The two Sections 25 and Section 25A were incorporated in the Act in order to make the

Panchayats more efficient. Immediately thereafter the petitioners, who were working in the

various departments at village level in the erstwhile State of Uttar Pradesh like Irrigation



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Department, Health Department, Education Department, Cane Department etc., were transferred

to the various Panchayats under the Panchayat Department under Section 25(1)(a) of the Act.

Initially they were given a nomenclature of Multi Purpose Employees. Thereafter most of them

were working

as a "Secretary" in various Gram Panchayats in the State (in the erstwhile State of Uttar

Pradesh). In the year 2003 the Govt. of U.P transferred back all such employees from various

departments to their parent departments. The matter went up to the Hon'ble Apex Court in which

it was held that such repatriation was just and valid.


The court held that the issue of appointment of the new Development Officer was not under

challenge. The Court gave its finding on a very limited issue as to the status of the present

petitioners for being repatriated to the original department. It was held that no interference could

be granted in the writ petition and no relief sought by them could be given to them. Accordingly,

all the writ petitions were dismissed.


Deputationists have no right of being absorbed in the borrowing department according to the

judgment of Supreme Court in U.P. Gram Panchayat Adhikari Sangh & others v. Daya Ram

Saroj & others reported in 2007 (2) SCC 138.




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STATE OF UTTAR PRADESH

I. Veenu Gangawar v. State of U.P.

1. State- Uttar Pradesh

2. Court- Allahabad High Court

3. Bench- 2 judge bench (Division Bench)

4. Name of Bench-Vineet Saran and B. AmitSthalekar, JJ.

5. Case No.- Civil Misc. Writ Petition No. 38978 of 2013

6. Name of the case-Veenu Gangawar v. State of U.P


8. Petitioner-Smt. Veenu Gangawar

9. Respondent- State of U.P. and Others

10. Case types- Writ Petition (Civil)


a) Whether the removal of the petitioner from the post was valid?

b) Whether the preliminary enquiry held ex parte, against the petitioner was proper?

c) Whether there was mala fide involved of the respondents in the present case?

12. Grounds of Challenge- Proviso to section 16 of Kshetra Panchayat and Zila

PanchayatAdhiniyam, 1961


• Smt. Kesari Devi W/o ShriGulab Singh, Chairman, ZilaPanchayat vs. State of U.P.

through Principal Secretary Panchayat Raj, Government of U.P. 2005 4 AWC3563 All

14. Area of dispute- Removal and non-confidence motion

15. Area of dispute category - Suspension of Surpunch & others

16. Provisions of Laws involved- Proviso to section 16 of Kshetra Panchayat and Zila

Panchayat Adhiniyam, 1961

17. Gist of case- The Petitioner, Smt. Veenu Gangawar was the Pramukh of ‘Kshetra

Panchayat’, Nawabganj, District Bareilly. The complaint was lodged by Respondent no.5, whose

wife lost to the Petitioner in the Kshetra Panchayat election, with the state government regarding

the financial irregularities that were committed by the petitioner. Pursuant to the complaint, the



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District Magistrate(DM) served a notice on the petitioner intimating that the complaint was filed

against her and by order constituted a 3-member enquiry committee and also issued notice of

inquiry and inspection of petitioner’s office. No inquiry was conducted on the set date. However,

a show cause notice was issued to the petitioner informing her that the charges against her were

proved, and directing her to submit a reply along with evidence within two days. The petitioner

filed an application praying for time to file the reply but after four days an ex parte report was

submitted by the Enquiry Officer which recommended for the seizure of financial and

administrative powers of the petitioner under the proviso to section 16 of Kshetra Panchayat and

Zila Panchayat Adhiniyam, 1961. The aforesaid order was cancelled by the state government

stating that no proper enquiry was held and directed that fresh report be submitted after getting

the explanation of the petitioner. Pursuant to the order of the state government, Additional

district magistrate ordered Petitioner to submit her reply within one week. The petitioner

submitted her reply within four days with all evidence. However the State Government, pending

final enquiry, passed an order, taking away the financial and administrative powers of the

petitioner. It also ordered the 3-member committee consisting of the Respondents (also

respondent 5), to exercise powers and the functions of pramukh. Hence the writ petition was

filed challenging the aforesaid order of the state government wherein the petitioner alleged

malafide of the respondents.

18. Operating portion of the judgment - The Court found that there was the malafide on the

part of the respondent-authorities whose wife had lost election to the petitioner. Thus, it was held

that the order passed by the State Government deserved to be set aside on the ground of

malafides alone. After having gone through the original record also, Court felt that the enquiry

against the petitioner was not held in a proper manner, and on the contrary it was concluded in a

hasty manner without there being proper notings in the note-sheet or otherwise. Thus, the writ

petition stood allowed. The order dated 29.5.2013 passed by Special Secretary, Panchayati Raj,

Government of U.P., Lucknow, respondent no.2, was quashed. The consequential order dated

12.6.2013 passed by the District Magistrate, Bareilly, respondent no.3, was also quashed. The

respondents were directed to forthwith restore the petitioner as Pramukh, Kshetra Panchayat,

Nawabganj, District Bareilly.



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19. Ratio Decidendi-Though there was no requirement under Rule 4 of U.P.Kshetra Panchayat

and Zila Panchayat (Removal of Pramukh, Up-pramukh, Adhyaksha and Upadhyaksha) Enquiry

Rules, 1997 for associating the Pramukh in the preliminary enquiry as the same was only a fact-

finding enquiry, the charges against the petitioner were wholly vague and none of them relate to

any particular financial irregularity, and the petitioner was never given opportunity.

20. Obiter Dicta: For any democracy to be successful, it has to be strengthened at the grass root

level. An elected representative, whether it be at the lowest or highest level, should not be

denuded of his powers, except for very valid and good reasons and in accordance with law.



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II. Jamil Ahmad v. State of U.P. And Others.




4. Name of Bench- TarunAgarwala, J.

5. Case No.- Civil Misc. Writ Petition No. 40376 of 201

6. Name of the case- Jamil Ahmad v. State of U.P. and Others.


8. Petitioner- Jamil Ahmad

9. Respondent- State of U.P. and Others

10. Case types- Writ Petition(Civil)

11. Main law points involved-Whether the order of removing gram pradhan by the District

magistrate under Section 95(1)(g) of the U.P. Panchayat Raj, Act, 1947 read with U.P.

Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 was

valid, in light of the appeal pending against the conviction of the Pradhan?

12. Grounds of challenge- 95(1)(g) of the U.P. Panchayat Raj, Act, 1947 , U.P. Panchayat

Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997


• RadheyShyam son of Late BheemSen vs. State of U.P. through Principal Secretary,

Panchayati Raj , 2008 (72) ALR 344

14. Area of dispute- disqualification

15. Area Of Dispute Category - Office of profit related



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16. Provisions of Laws Involved-95(1)(g) of the U.P. Panchayat Raj, Act, 1947, U.P.

Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997

17. Gist of case-

The petitioner was elected as pradhan but was subsequently convicted for an offence involving

moral turpitude, which is a ground for removal under Section 95 (1) (g) (ii) of the U.P.

Panchayat Raj Act, 1947. The proviso to this Section requires opportunity to be given to the

concerned Pradhan for showing cause against the action proposed. The petitioner was issued a

show-cause notice as to why he should not be removed from the post of the Pradhan. The

petitioner in reply stated that an appeal against his conviction is pending and upon such reply the

district magistrate passed an order under Section 95(1)(g) of the U.P. Panchayat Raj, Act, 1947

read with U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry

Rules, 1997 removing him from the post of the Pradhan. The petitioner, being aggrieved by the

said order, filed the writ petition. The provision made it clear that a person shall be disqualified

for being chosen and for being the Pradhan, if he has been convicted of an offence involving

moral turpitude.

18. Operating portion of the judgment-The court held that the petitioner has been convicted

of an offence involving moral turpitude, and consequently, the District Magistrate was justified

in removing the petitioner from the post of Pradhan under the said provision. The validity of the

impugned order was upheld and the writ petition was dismissed.

19. Ratio Decidendi- if a person is convicted of an offence involving moral turpitude, he would

be removed as the Pradhan under Section 95(1)(g) of the aforementioned act.

20. Obiter Dicta- once a person has been convicted, he incurs a disqualification for being

chosen or for being the Pradhan and is disqualified from holding an office.

Section 95 (1)(g)(ii) provides that the State Government may remove a Pradhan, if he is accused

of or charged for an offence involving moral turpitude.



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III. Shyam Dulari Devi v. State of U.P.




4. Name of Bench- Vimlesh Kumar Shukla, J.

5. Case No.-Civil Misc. Writ Petition No. 58488 of 2005

6. Name of the case- ShyamDulari Devi v. State Of U.P.


8. Petitioner- Smt. ShyamDulari Devi W/o Shri Ram Jeet Prasad

9. Respondent- State of U.P. through the Principal Secretary, Department of Local Bodies

(Gram Panchayat) Government of U.P. and Ors.

10. Case types- Writ Petition (Civil)

11. Main law points involved- Whether the writ petition is maintainable or not?

12. Grounds of challenge

a. Sections 9(6), 9(7), 9(8),9(11),12CUttar Pradesh Panchayat Raj Act, Section 43 and

section 18 of Representation of the People Act, 1950

b. Article 226,243K, 243O Constitution of India

c. Article 329 Municipal Election Rules,1952


• Sher Singh Budh Singh and Anr. v. The State of Punjab and Ors., AIR 1965 Punjab 361;

• Lekh Raj v. Cantonment Board, AIR 1958 Pubj. 356;



1021

668

• S.B. Javaregowda v. Lakkigowda, AIR 1958 Mys. 73;

• Lajpat Rai v. Khilari Ram 62 Pun.L R. 377;

• Dev Prakash v. Babu Ram, 63 Pun L.r. 485 : AIR 1961 Punj. 429;

• Election Commission of India v. Ashok Kumar, 2000 (5) SCC 216;

• Shri Sant Sadauru Janardan Swam/ (Moingri Maharaj) Sahkari Dugdha Utpadak Sansth

and Anr. v. State of Maharashtra and Ors., J.T. 2001(8) SC 287

14. Area of dispute- Election \

15. Area of Dispute Category – Cancellation

16. Provisions of Law involved-

a. Sections 9(6), 9(7), 9(8),9(11),12CUttar Pradesh Panchayat Raj Act, Section 43 and

section 18 of Representation of the People Act, 1950

b. Article 226,243K, 243O Constitution of India

c. Article 329 Municipal Election Rules,1952

17. Gist of case - The dispute is related to elections for the post of Pradhan for the gram

panchayat of a village named Bhatgawan, which took place on 20.08.2005. Petitioner and one of

the Respondents were contestants for the post. The elections of the adjoining village Sonebarsa

Khurd were held on 17.08.2005. Petitioner contended that the 10 family members of that

Respondent had got their names inserted in the voter lists of 2 or 3 Gram Panchayats

simultaneously, which is not allowed under Section 9(6) of UP Panchayat Raj Act 1947. They

allegedly casted their votes in the elections in Sonebarsa Khurd. Hence the petitioner filed

application to Election Officer praying to prohibit them from casting their votes in the election

of Bhatgawan. Petitioner submitted that despite the complaint being made, no action was taken

and all those persons casted their vote in the election of Bhatgawan. In the elections for gram

panchayat of Bhatgawan, the Respondent won by a margin of 3 votes only and such election has

affected justice qua the petitioner. Hence the Petitioner filed this writ petition to invalidate the

results of the gram panchayat elections.



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18. Operating portion of the judgment- Having relied upon various cases, the petitioners

submitted that Section 13(O) of the Punjab Gram Panchayat(Amendment) Act 1962, gives the

grounds for setting said elections.Further it was contended that if the authorities have exercised

their power unreasonably or capriciously while preparing the rolls in violation of and not under

the rules, then the rolls might well be struck down but the court has to determine the nature and

extent of the breach as every effect caused by negligence or inefficiency or breach of rules in

preparation of rolls will not invalidate them. On the other hand, the respondents contended that

the High court had no authority to entertain the writ petition and not to interfere in the election

proceeding in view of specific bar being imposed by the Constitution by means of Article

243O(b) which provides that no election to any Panchayats should be called in question except

by an election petition presented to such authority and in such manner as is provided for by or

under any law made by the Legislature of a State and as such writ petition be dismissed The

High Court considered all aspects and held that once the result of the election is declared, it

would be open to the appellant to challenge the election of returned candidate, if aggrieved by

means of an election petition before the election tribunal. Thus it was held that the writ petition

was not maintainable got dismissed on the ground of alternate remedy of election petition.

19. Ratio Decidendi- If the matter fell within the category of questioning the elections of

Panchayat and therefore constitutional embargo placed upon Courts, comes into play, and courts

authority under Article 226 is pushed out, by the virtue of Article 243O(b).

20. Obiter Dicta- The High court cannot to interfere in the election proceeding in view of

specific bar being imposed by the Constitution by means of Article 243O(b) which provides that

no election to any Panchayats should be called in question except by an election petition

presented to such authority and in such manner as is provided for by or under any law made by

the Legislature of a State .



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IV. Jai Singh Yadav v. Additional District Judge




4. Name of Bench- Sunil Ambwani, J.

5. Case No- C.M.W.P. No. 11652 of 2007, D/-25 -5 -2007

6. Name of the case- Jai Singh Yadav v. Additional District Judge


8. Appellant- Jai Singh Yadav son of Sri ShyamLal

9. Respondent- Additional District Judge (Court No. 1) and Ors.

10. Case types-Election petition


a) Whether Respondent no. 4 was disqualified from contesting the elections for the

post of Pradhan, as per Section 5A(c) of UP Panchayat Raj Act 1947, or not.

12. Grounds of challenge - Whether Respondent no. 4 was disqualified from contesting the

elections for the post of Pradhan, as per Section 5A(c) of UP Panchayat Raj Act 1947, or not.


• Konappa Rudrappa Nadgouda vs. Vishwanath Reddy and Anr AIR1969 SC 604


15. Area Of Dispute Category – office of profit related

16. Provisions of Laws involved- Section 5A(c) of UP Panchayat Raj Act 1947

17. Gist of case -The petitioner and four of the Respondents filed their nomination for the post

of Pradhan in the Gram Panchayat elections. The Petitioner filed objection against the

nomination of two of the Respondents (no. 4 and 5), which were rejected. Subsequently

Respondent no. 4 won the election.The Petitioner then filed an election petition in which the sub

divisional magistrate held that the Respondent no. 4 and 5 were disqualified from contesting the

elections, as they were employees of Bharat Pumps and Compressor Ltd Naini, Allahabad which

is a Government of India undertaking with 100% shares held by the Central Government.



1024

671

Petitioner was declared as duly elected pradhan. Shri Shiv Prasad Yadav filed a Revision in

which the District Judge did not grant any interim order. The revision, however, was allowed on

24.2.2007 setting aside the order of Sub Divisional Magistrate, gave rise to writ petition before

the High Court.

18. Operating portion of the judgment-The revision court held that the following tests laid

down were --- to the employment of the returned candidate and thus he was not disqualified to

contest the election of pradhan of the village. The questions that the court considered were (1)

whether the Government makes the appointment; (2) whether the Government has the right to

remove or dismiss the holder; (3) whether the Government pays the remuneration; (4) what are

the functions of the holder; does he perform them for the government; and (5) does the

Government exercise any control over the performance of those functions. On the basis of

evidence submitted and arguments advanced, the court didn’t find any error of law in the opinion

expressed by the revisional court and held that the respondent No. 4 was serving as semi skilled

labourer in Bharat Pump and Compressor Ltd, Naini Allahabad in which 100% shares were held

by the Central Government. According to the High court of Allahabad, the revision court

correctly appreciated the facts and the law and had not made any error of law or jurisdiction in

allowing the revision and to set aside the judgment of the Sub Divisional Magistrate. The writ

petition was consequently dismissed.

19. Ratio Decidendi- The corporation is a company under Section 617 of the Companies Act,

1956. The day-to-day management of the corporation, is with the Board of Directors and not by

the Central Government. The Central Government does not have direct control over the services

of the employees of the Corporation. The Central Government neither appoints nor directly pays

the salary to the employees of the corporation and does not have powers to take disciplinary

action against them. The test in such case for deciding whether a person holds office of profit

under the State Government or Central Government or the Corporation wholly owned by the

State Government or Central Government is the extent of control, the Government exercises

over such employee.

20. Obiter Dicta- It does not make any difference whether the corporation is a statutory

Corporation or a Government Company with or 100% shares are held by the Central

Government inasmuch as the tests of control over the employees is a relevant factor. The import



1025

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question is to be asked as to whether the Government has powers to appoint or remove the

person from office.



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673

V. Champa Devi v. Prescribed Authority/Sub Divisional Magistrate

1 .State- Uttar Pradesh


3 .Bench- Single judge

4. Name of Bench- M.C. Tripathi, J.


6. Name of the case- Champadevi v. Prescribed authority/Sub Divisional Magistrate


8. Appellant- Champa Devi

9. Respondent- Prescribed Authority/Sub Divisional Magistrate

10. Case types-Election petition

11. Main law points involved- Whether the order of recounting of votes was justified in the

present case?

12. Grounds of challenge- The election of the petitioner wherein an order dated 30.08.2012 was

passed in the election petition directing for recounting of votes.


• Ram Adhar Singh vs. The District Judge and Ors.

• Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao and Ors.

• R. Narayanan vs. S. Semmalai and Ors.

• Bhabhi vs. SheoGovind and Ors.

• P.K.K. Shamsudeen vs. K.A.M. MappillaiMohindeen and Ors.



1027

674

• Vadivelu vs. Sundaram and Ors.

• M. Chinnasamyvs. K.C. Palanisamy and Ors.

• Sadhu Singh vs. Darshan Singh and Anr.

• Naresh Kumar vs. PrakashNarainAwasthi and Ors.

• JibontaraGhatowar vs. SarbanandaSonowal and Ors.

• S. Baldev Singh vs. Teja Singh Swatantar (Dead) and Ors.

• ShriJitendraBahadur Singh vs. ShriKirshnaBehari and Ors.

• Kidwai Husain Kamil vs. Yadav Ram Sewak and Ors.

• State of Rajasthan vs. SurendraMohnot

• KonappaRudrappaNadgouda vs. Vishwanath Reddy and Anr


15 Area of Dispute Category - Recount of vote

16. Provisions of law involved- Rule 107 of the Uttar Pradesh Panchayat Raj Elections of

Members, Pradhan and Up Pradhans) Rules, 1994

17. Gist of case- Election was conducted in October 2010 for the post of GramPradhan in

village Dhaurahara, district Mirzapur. The Petitioner was declared elected as Village Pradhan.

Respondent no. 6 who lost by two votes, filed an election petition challenging the election of the

petitioner wherein the order dated 30th

August 2012, directing for recounting of votes was

passed. Aggrieved with the said order, the petitioner filed a Writ Petition wherein the court set

aside the order dated 30th August, 2012 and sent back the case to the Authority for speedy

disposal. Respondent no.6 filed an application dated 1.11.2012 before the authority to decide the

election petition in accordance with direction issued by the writ Court.The impugned Order

dated 11.1.2013 was passed and again directed for recounting of votes. A number of cases

decided by the Supreme Court were relied on by the Petitioner and argued that on the vague and



1028

675

indefinite allegations, the prescribed authority could not direct for recounting. The Respondent,

on the other hand, stated that the competent authority on being satisfied that recounting was

necessary in the interest of justice can pass such order. Thus recounting of votes in this case

would not be against the law. Further it was submitted that as per the Rule 107 of the Uttar

Pradesh Panchayat Raj Elections of Members, Pradhan and Up Pradhans) Rules, 1994, the

signature of returning officer is mandatory whereas in present matter they were not found.

18 Operating portion of the judgment- The court set aside the impugned order directing

recounting of votes. It was held that the impugned order dated 11.1.2013 couldnot be sustained

and was, accordingly set aside to the extent for a direction for recounting

19. Ratio Decidendi- If in the earlier round of litigation counsel got a favourable order

regarding the early disposal of the election petition that too after setting aside the recounting

order , again, on the same facts, the application for recounting cannot be sustained.

20. Obiter Dicta- Though, as per the Rule 107 of the Uttar Pradesh Panchayat Raj Elections of

Members, Pradhan and Up Pradhans) Rules, 1994, the signature of returning officer is

mandatory the mere technicality does not invalidate the counting of votes.



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VI. Daya Shanker v. District Panchayat Raj Adhikari and Anr.


2 .Court- Allahabad High Court

3 .Bench- Single judge

4 .Name of Bench- MarkandeyKatju, J.

5. Case No.-Civil Misc. Petition No. 32238 of 1996

6. Name of the case- Dayashanker v. District panchayat raj adhikari and anr.


8. Appellant- DayaShanker

9. Respondent- District Panchayat Raj Adhikari and Anr.

10. Case types -Election petition


(i) Whether the no confidence motion passed by the Gram Sabha was justified, or not.

(ii) Whether Section 14 of the U.P. Panchayat Raj Act 1947 is ultra vires the Constitution, or

not.


Section 14 Uttar Pradesh Panchayat Raj Act, 1947 , Section 113(2) Uttar Pradesh Panchayat

Raj (Amendment) Act, 1994 , Rules 33 B and 33B(3)Uttar Pradesh Panchayat Raj Rules,

1996


14. Area of dispute- Removal and No Confidence motion



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15. Area Of Dispute Category - Suspension of sarpanch

16. Provisions of laws Involved- Section 14 Uttar Pradesh Panchayat Raj Act, 1947 , Section

113(2) Uttar Pradesh Panchayat Raj (Amendment) Act, 1994 , Rules 33 B and 33B(3)Uttar

Pradesh Panchayat Raj Rules, 1996

17. Gist of case- The Petitioner was elected as Gram Pradhan of village Sairon. However all 11

members of that Gram Sabha signed on a notice of no-confidence motion against him which was

in consonance with Section 113(2)Uttar Pradesh Panchayat Raj (Amendment) Act, 1994 which

read as the notice for calling a meeting of no confidence must be signed by at least fifty per cent

of the members of the Gram Panchayat. The petitioner challenged such motion on grounds that

the Panchayat members had already made up their minds before calling any meeting on the

issue, as required by Rule 33B of the U.P. Panchayat Raj PradhanUpPradhan and Member

Enquiry Rules, 1997. Petitioner also challenged the constitutional validity of Section 14 of U.P.

Panchayat Raj Act 1947. It was contended that the aforesaid provision was arbitrary as though

the Petitioner was elected by the entire Gram Sabha,,under Section 14the U.P. Panchayat Raj

Act he can be removed by two-third majority of the members of Gram Panchayat. And hence the

provision is wholly arbitrary as a person elected by the entire Gram Sabha can be removed by a

much smaller body.

18. Operating portion of the judgment - With respect to the first issue court held that

impugned notice was only to call a meeting of no confidence and is only tentative. The meeting

was called to discuss the issue of removal of the petitioner. Further the contention of invalidity

of Section 14 was not accepted by the court. It was observed that there was nothing arbitratry

about the procedure, hence, the writ petition was dismissed.

19. Ratio Decidendi- Section 14 of the U.P. Panchayat Raj Act 1947 is not ultra vires .

20. Obiter Dicta- Before Section 14 was incorporated in its present form , more than half of the

Gram Sabha had to sign on the notice of no confidence and then at least 2/3rd of the members of

Gram Sabha had to pass the resolution. This method created a lot of confusion owing to fake

signatures. Thus a simple procedure was adopted by the Ac to simplify the procedure which

can’t be called arbitrary.



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VII. Manju Devi v. State Of U.P. and Ors.




4. Name of Bench- Sunil Ambwani, J.

5. Case No.- C No. 17561 of 2006 [2006]

6. Name of the case- Manju Devi v. State of U.P. and Ors.


8. Appellant-Manju Devi

9. Respondent-State of U.P. and Ors.

10. Case types –Election Petition


(i) whether Shri Surendra Pratap Singh had in fact resigned from the post of Chairman of the

Cooperative Cane Development Union Ltd. before filing nominations, and whether such

resignation was accepted or not.

(ii) Whether his nomination was liable to be rejected without giving him any opportunity of

hearing, or not.

12. Grounds of challenge- U.P. Panchayat Raj Act, 1947 - Section 11E

13. Reference taken from the case- NA


15. Area Of Dispute Category - Office of profit



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16. Provisions of Laws Involved- U.P. Panchayat Raj Act, 1947 - Section 11E

17. Gist of case- The Petitioner was the Pradhan of Village JungalAktaha, district Deoria,

against whose election an election petition was filed by one SurendraPratap Singh under Section

12C(2) of U.P. Panchayat Raj Act, 1947 challenging the elections on the ground that his

nomination paper was wrongly rejected a day before elections as he had resigned from the post

of Chairman of the Cooperative Cane Development Union Limited Gauri Bazar, before filing the

nominations. He contended that he was wrongly disqualified from contesting elections as he has

already resigned from the post of Cooperative Cane Development Union Limited before filing

the nominations. The election petition was allowed and election was set aside by the Sub

divisional magistrate. He filed the revision which was dismissed by the special judge. The

Petitioner challenged the order of the sub divisional magistrate and the judgment in the writ

petition. The court granted a stay on fresh election till the final order. The district magistrate

made a temporary arrangement under section 12 J (2) of the act by nominating one person to

officiate as pradhan of the village, which was also challenged. Both the petitions were heard

together in this case. Surendra Pratap Singh’s contention was that he was holding a honourary

post and hence, his resignation was valid from the date of filing such application for resignation

and there was no question of date of acceptance. Against this, Petitioner contended that Surendra

Pratap Singh had withheld the fact of his disqualification under section 11 J of the act and he

was not eligible to contest the election as he was holding office of profit.

18.Operating portion of the judgment- The court held that Shri Surendra Pratap Singh was

obliged in law to have disclosed that he had resigned so that election officer could have verified

this fact. Shri Surendra Pratap Singh did not take up ground of resignation in the election

petition and therefore election petition could not be allowed on the grounds not taken in the

pleadings. Therefore the court set aside the impugned judgments. It was further held that Mr.

Singh did not disclose in his nomination about holding of the aforesaid post and any resignation,

in his plaint when he filed the election petition. Therefore election petition could not be allowed

on the grounds not taken in the pleadings. Hence the Court, following the rules of the Code of

Civil Procedure 1908, set aside the impugned orders and restored the Petitioner (of this case) at

the post of Gram Pradhan.



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19. Ratio Decidendi- The right to lead evidence does not provide to take any party by surprise.

The evidence is to be led on the issues which the plaintiff or the defendant is required to prove.

Where no issue has been framed, the party is not entitled to lead evidence and then to rely upon

it in proving of his case.

20. Obiter Dicta- On questions- whether the Election Tribunal/Returning Officer had authority

to cancel election petitioner's nomination after it was allotted to him and issue No. 2 as to

whether the election was affected by scoring out the nomination and election symbol of the

election petitioner a day before elections, did not give any indication that the election petitioner

would proceed to prove that his disqualification was removed by his resignation. The documents

were admitted in evidence beyond the pleadings.



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VIII. Shamiuddin v. Additional District Judge (I), Mathura




4. Name of Bench-S.R. Singh, J.

5. Case No.-C.M.W.P. No. 13838 of 1997

6. Name of the case- Shamiuddin v. Additional District judge (i), Mathura.


8. Appellant- Shamiuddin

9. Respondent- Additional District Judge (I), Mathura and others

10. Case types –Election Petition


a. Whether the Petitioner was a member of backward class eligible to contest the Election, or

not?

b. To what relief, if any, was the election petitioner entitled?

12. Grounds of challenge- Eligibility of the candidate to contest the Election


• Paras Ram v. Shiv Chand, AIR 1969 SC 597

14. Area of dispute- Reservation

15. Area of Dispute Category – Reservation related to SC, ST and backward class



1035

682

16. Provisions of Laws Involved-

a. Section 11A (2), Uttar Pradesh Panchayat Raj Act,1947

b. Section 12C, Uttar Pradesh Panchayat Raj Act, 1947

c. Section 12C(1); Constitution ofIndia - Article 226, Article 227

17. Gist of case - The petitioner was declared elected for the office of pradhan of gram

panchayat. The office of pradhan was reserved for candidate belonging to backward class under

the name “Sheikh”. The petitioner declared himself to be of Muslim backward class and was

elected as the Pradhan. The Respondent (Bahori) filed an election petition under Section 12C of

the U. P. Panchayat Raj Act, 1947 for setting aside the election on the ground that the petitioner

did not belong to backward class and has obtained the caste certificate fraudulently from the

Tehsildar .The only ground on which the election of the petitioner was sought to be set aside by

the prescribed authority was that his nomination paper was illegally accepted and he did not

belong to the backward class and was, therefore, not eligible to contest the election as a

backward class candidate . The Hon’ble High court further observed that mere cancellation of

the caste certificate would be no ground to hold that petitioner does not belong to backward class

and therefore his nomination paper was improperly accepted.

18. Operating portion of the judgment

The court looked into the dictionary meaning of the word “Sheikh” and opined that “Sheikh” is a

title of respect. Such title was not the exclusive privilege of a member of Upper/Forward class. A

person belonging to Muslim backward class may also be given such a title of respect by the

people of his community. Hence the court allowed the petition and restored the position of the

Petitioner as the Gram Pradhan.The impugned judgments and orders were quashed.

19. Ratio Decidendi- The mere cancellation of the caste certificate which was issued in favour

of the petitioner would be no ground to hold that he does not belong to backward class.

20. Obiter Dicta- The backward caste 'Momin Ansar' includes 'Sheikh' if at all the latter denotes

a caste, for that is within the exclusive power of the State Government. However, backward



1036

683

caste 'Momin Ansar' includes 'Sheikh' and it is within the exclusive power of the State

Government.



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IX. Surendra kumar and ors. v. State of U.P. and ors.




4 .Name of Bench- TarunAgarwala and Amar Singh Chauhan JJ.

5. Case No.-Civil Misc. Writ Petition Nos. 13319 of 2014, 18491 and 13521 of 2015

6. Name of the case- Surendra Kumar and Ors. v. State of U.P. and Ors.


8. Appellant- SurendraKumar and Ors.

9. Respondent- State of U.P. and Ors.

10. Case types-Writ petition (Civil)


a. Whether the said decision of allotment of the shop to a person of General category was

correct, or not.

12. Grounds of challenge- Validity of the decision of allotment of the shop to a person of

General category


• Kusma Devi vs. State of U.P. and Ors.


15. Area Of Dispute Category - Leasing

16. Provisions of Laws Involved- Constitution of India - Article 334



1038

685

17. Gist of case- The matter relates to allotment of license for a fair price shop in Gram

panchayat named Saraiya Mishra. Earlier the license was allotted to one Ram Nayan who

belonged to OBC category. Subsequently Ram Nayan’s wife became the Gram Pradhan, hence

disqualifying him from holding the license as per a Government Order. The Sub Divisional

Magistrate issued an order dated 15.1.2011 cancelling the shop allotted and an appeal was filed

by Sri Ram Nayan which was dismissed. The Gram Panchayat then, passed a resolution

recommending the names of the petitioner for the allotment of shop as he belonged to the OBC

category. The proposal of the Gram Panchayat was rejected by the Sub Divisional Magistrate by

the impugned order dated 6.2.2014, on the ground, that back log quota of Scheduled Caste and

Scheduled Tribes are required to be filled up and, therefore, the Gram Panchayat should send

name belonging to a Scheduled Caste or Scheduled Tribes category. Thepetitioner, being

aggrieved by the said order, filed the writ petition.

18. Operating portion of the judgment- The court analysed pertinent rules and held that the

stand of the respondent to till up the vacancy from an O.B.C. person on the ground that the

Pradhan was an OBC was wholly illegal and of the petitioner is untenable and cannot be

accepted. It was opined that the categorization of shops had to be done ‘at the initial stage’ and

not when a vacancy has arisen. Such categorizations should remain fixed and be followed

whenever a vacancy arises. Thus Court found that in the light of the government’s order, the

authorities were not implementing the reservation schemes properly and thereby passed the

adequate order.

19. Ratio Decidendi- As per Section 11-A(2) and (4), 12(5) of the U.P. Panchayat Raj Act read

with Rules 3 and 4 of the U.P. Panchayat Raj (Reservation and Allotment of Seats and Offices)

Rules, 1994, allotment is to be made only for the vacant shops. The running shops were not to be

disturbed. The later would be checked only when vacant and vacant shops will be filled up from

that category identified for such purpose.

20. Obiter Dicta- the number of seats in a district should be identified for a particular category

on the basis of the population in the descending order, i.e., the number of persons belonging to

one reserved category in the Gram Sabha would be the basis of determination and identification

of a particular shop for reservation.



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X. Kusma Devi v. State of U.P.




4 .Name of Bench- Rajes Kumar and Shashi Kant, JJ.


6. Name of the case-Kusma Devi v. State of U.P.


8. Appellant-.Kusma Devi

9. Respondent- State of U.P. and Ors.

10. Case types-Writ petition(Civil)


a. Whether all vacancies occurred before and after 10.8.2007 (date of the Government

order) shall be subject tofulfillment of Backlog quota of reserved class irrespective to the

fact that they fall under reserved category?

12. Grounds of challenge- Issues pertaining to fulfillment of Backlog quota of reserved class

13. Reference taken from the case- Nil.

14. Area of dispute- Reservation

15. Area of Dispute Category – Reservation related to SC, ST and backward class

16. Provisions of Laws Involved- UP Panchayat Raj Act 1947, the Government Order of 2007

17. Gist of case-The Petitioner belonged to the OBC category and resided in Bilawa village. The

petitioner and one Ram Pratap Singh applied for dealership of Fair Price Shop. The Petitioner

was first selected but subsequently her name was dropped. The justification given was that as per

the Government Order of 2007, the backlog of quota for the reserved categories had to be

satisfied first and hence the concerned shop was reserved for SC category. The petitioner

submitted that when the meeting was convened to make available the proposal regarding dealer

of fair price shop, no SC candidate applied for the dealership. The Petitioner thus filed writ

petition, praying for quashing of the Government Order of 2007, cancelling the decision of the

authorities and to issue a writ or direction commanding the respondent to appoint petitioner as

fair price shop dealer.



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687

18. Operating portion of the judgment-The court noted that proper identification with regard

to reservation had not been done in the Bilawa village.Elected Pradhan of the village was also of

the General Category and fair price shop of Gram Panchayat Bilawa never reserved for

Scheduled Caste or any other reserved category. Hence the order giving license for the

impugned shop to a person of SC category was quashed and the authorities were directed to

make proper categorization as per the reservation scheme before making any allotment. The writ

petition was allowed.

19. Ratio Decidendi- The Legislature often fails to keep pace with the changing needs and

values nor is it realistic to expect that it will have provided for all contingencies and

eventualities. It is, therefore not only necessary but obligatory on the Courts to step in to fill the

lacuna.

20. Obiter Dicta- There was no provision, either in the UP Panchayat Raj Act 1947 or in the

Government, which enables the respondents/ authorities to fulfill Backlog quota of reserved

category in the dealership of every vacant fair price shop irrespective of the fact that it falls

under reserved category of Scheduled Caste or not.



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XI. Gram Vikas Adhikari Sangh v. State of U.P.




4 . Name of Bench- Shishir Kumar, J.

5. Case No.- C.M.W.P. No. 42429 of 2004

6. Name of the case-Gram VikasAdhikariSangh v. State of U.P.


8. Appellant- Gram VikasAdhikariSangh and Ors.

9. Respondent-State of U.P. and Ors.



a. Whether after repatriation, the petitioner can perform the function as provided by Section

32(4) Uttar Pradesh Panchayat Raj Act, 1947?


Sections 25, 25 A, 32(4) Uttar Pradesh Panchayat Raj Act, 1947 - Articles 14, 154, 243 G of

Constitution of India


• Manbodh Kumar v. State of U.P. and Ors., Special Appeal Nos. 591 and 709 of 1999

along with Writ Petition No. 33920 of 1999

• Krishna Kant Tiwari v. State of U.P. and Ors., 2002 (3) ESC500 (All);

• GauriShanker and Ors.v. State of U.P. and Ors., Writ Petition No. 30054 of 2004;

• Subhash Chandra Pandey v. State of U.P. and Ors., Writ petition bearing No. 31085 of

2004;

• State of U.P. v. Om Prakash,

• Umesh Chandra Vinod Kumar and Ors.v. KrishiUtpadanMandiSamiti


15. Area Of Dispute Category - Income from own sources



1042

689

16. Provisions of Laws Involved- Sections 25, 25 A, 32(4) Uttar Pradesh Panchayat Raj Act,

1947 - Articles 14, 154, 243 G of Constitution of India

17. Gist of case- The Petitioner challenged a Government Order dated 16.9.2004, which gave

directions for the manner of operation of Gram Nidhi Account of Gram Panchayat in lieu of

Section 32(4) of the 1947 Act. Two subsequent Government orders dated 18th and 20th

September had also been challenged, which gave directions to the banks that all transaction

related to the Gram Nidhi Account would be done under the joint signatures of Gram Pradhan

and Gram Panchayat Vikas Adhikari of the concerned Gram Panchayat. The source of the

aforesaid orders was Art. 243G of the Constitution, inserted via the 73rd amendment. It gave the

Village Panchayats more autonomy to act as institutions of self- governance. The State

government was empowered to make policies to bring this into effect.The State Government in

furtherance of the aforesaid constitutional philosophy issued Government Orders transferring the

employees of the certaincadres of eight departments and posting them under the supervision and

control of villagePanchayats. U.P. State Government by issuing orders, transferred some of its

employees to work under the Gram Panchayat. The said employees were to function as multi-

purpose workers with the designation of Gram PanchayatVikasAdhikari and one of such

employee in each village Panchayat was to be appointed as officiating Secretary of the Gram

Panchayat. The writ petition was filed seeking a declaration that the Secretary of the Gram

Panchayat, even if transferred to his previous department, should have the powers under Section

32(4) and the pursuant Government Order retained.

18. Operating portion of the judgment

It was observed that Gram Nidhi Account could be operated under the joint signatures of Gram

Pradhan and Gram Panchayat Vikas Adhikari which was consistent with the statute namely

Section 32(4) of U.P. Panchayat Raj Act, 1947. Court held that once it is admitted that the

petitioners have been repatriated to their parent department and are not working as Gram

Panchayat Vikas Adhikari and have also not been posted or placed under the administration and

financial control of village Panchayat, they cannot claim that they are still entitled to work or

discharge any duty of Secretary of village Panchayat or is entitled to operate any Gram Nidhi

Account. The petitioner got no right to work and discharge duties which have not been assigned

to them. The petition was thus devoid of merits and was dismissed.



1043

690

19. Ratio Decidendi- All actions of the Government of State are expressed in the name of

Governor but orders and other instruments made and executed in the name of Governor as may

be specified in the rule known as Business Rule to be made by the Governor and the validity of

such instrument or orders are not open to challenge on the ground that it is not the order or

instrument made or executed by the Governor..

20. Obiter Dicta- It is absolutely in the domain of the Government to prescribe as to what duties

and responsibility shall be looked after and discharged by the Gram Vikas Adhikari.



1044

691

XII. Pappu v. State of U.P.



3. Bench- division bench

4. Name of Bench- N.K. Mitra, C.J. and S.R. Singh, J.

5. Case No.- Special Appeal No. 1069 of 1999

6. Name of the case- Pappu v. State of U.P. and others


8. Appellant- Pappu

9. Respondent- State of U.P. and others

10. Case types-Appeal


a. Whether the appeal is maintainable or not?

b. Whether the cancellation of Petitioner’s license was justified or not?


Legality of the cancellation of the Petitioner’s License


• U.P. Sasta Galla Vikreta Parishad v. State of U.P. and others;

• Anandi Mukta S.M.V.S.S.J.M.S. Trust v. V.R. Rudani, (1989) 2 SCC 691

• U.P. State Co-operative Bank Limited v. Chandra Bhan Dubey, (1999) 1 SCC 741



1045

692

• Jagveer Singh v. Chairman Cooperative Textile Mills Limited, Bulandshahar and

another, 1999 (3) AWC 2349

14. Area of dispute- Others

15. Area of dispute Category-Disputes among Panchayats and State Department Agencies

16. Provisions of law Involved- Section 15 of the Uttar Pradesh Panchayat Raj

(Amendment) Act, 1994; Articles 12, 14,162,226,243ZG of the Constitution of India ; Uttar

Pradesh Scheduled Commodities Distribution Order, 1990

17. Gist of case-The license of a fair price shop allotted to the Petitioner was cancelled by

the Gram Panchayat, owing to a Government Order of the year 1999, which aimed to implement

the 73rd Constitutional Amendment 1992. The writ petition filed by him against the cancellation

was dismissed. Hence this special appeal was preferred.

18. Operating portion of the judgment- The court held that selection and cancellation of

fair price shops are no longer a contractual matter. It was now governed by Section 15 of the

U.P. Panchayat Raj Act read with Government Order which has the force of lawbeing a

provision having statutory flavour. A decision regarding cancellation of fair price shop taken by

the GaonSabha sans any enquiry in tune with the principles of natural justice cannot be sustained

being contrary to the procedure laid down in the Government Order.

The court further held that decision relied on by the trial court Judge i.e U. P. SastaGalla Vikreta

Panshad v. State of U. P. and others had no application to a case of cancellation of an allotment

of a fair price shop for distribution of scheduled commodities the grant or cancellation of which

was now governed by Section 15 of the U. P. Panchayat Raj Act, 1947 read with the

Government Order referred to above which has the force of law. Further, the court held that the

functions assigned to the Gram Panchayat under Section 15 of the U. P. Panchayat Raj Act, 1947

were in the nature of public functions and, therefore, acts or omissions of the Gram Panchayat in

relation to such function shall be open to judicial review under Article 226 of the Constitution on

the touch stone of public interest and fairness etc. The validity of the order terminating the grant

can be questioned by the aggrieved party in a petition under Article 226 of the Constitution



1046

693

which provides a public law remedy by way of judicial review of State action as well as public

functions whether performed by public authority or by private body.

Hence the Appeal was allowed and the Judgment of the learned single Judge was set aside.

19. Ratio Decidendi- Allotment of fair price shop or its cancellation is a statutory function of

the Gram Panchayat. Exercise of statutory power by Gram Panchayat for collateral purposes is

interdicted by Article 14 of the Constitution. Arbitrary grant or cancellation of fair price shop is

open to judicial review under Article 226.

20. Obiter dicta- Once an allotment is made in favour of a person, he acquires a right to run the

shop in the manner prescribed in the Government Order. The allottee runs the risk of

cancellation only in the event of committing irregularities in the distribution of scheduled

commodities.



1047

694

XIII. Prem Lal Patel v. State of U. P.




4. Name of Bench- SaiyedHaider Abbas Raza and Kamal Kishore, JJ.

5. Case No.- Writ Petition No. 1371 of 2000 (M/B)

6. Name of the case- Premlal Patel v. State of U.P.


8. Appellant- PremLal Patel

9. Respondent- State of U. P. through Secretary, Panchayati Raj and another

10. Case types-Writ Petition(Civil)


a. Whether even due to unavoidable circumstances or public interest the election of panchayat

can be deferred through Uttar Pradesh Panchayat Laws (Amendment) Ordinance, 2000?

12. Ground of Challenge- Legality of deferring the election of panchayat through Uttar

Pradesh Panchayat Laws (Amendment) Ordinance, 2000 due to unavoidable circumstances or

public interest


• Professor B. K. Chandra - Shekhar and another v. State of Karnataka, AIR 1999

Karn 461



1048

695


15. Area of dispute category- Postponement of the election

16. Provision of law involved

Article 172,243C, 243K (1), 243 E(1), 246(3) of the Constitution of India

Uttar Pradesh Panchayat Laws (Amendment) Ordinance, 2000

Section 12, 12(3A), 12BB of Uttar Pradesh Panchayat Raj Act, 1947

Constitution (Amendment) Act, 1992

Uttar Pradesh Municipalities Act, 1916

Uttar Pradesh Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961

Section8, 20 of Uttar Pradesh Kshetra Panchayat and Zila Panchayat (Amendment) Act, 1962

17. Gist of the Case-The petitioner has assailed the ordinance named U. P. Panchayat Vidhi

(Sanshodhan) Adhyadesh. 2000, issued by the U.P. Government on the ground that it was ultra

vires the Article 243-E(3) of the Constitution of India, by which certain amendments were made

in U.P. Panchayat Raj Act 1947. The question before the court was that whether even due to

unavoidable circumstances, or public interest (which has not been mentioned or explained in the

Ordinance), the election of panchayat may be deferred by promulgating an Ordinance or

enactment.

18. Operating portion of the judgment.- The Court held that the mandate of Article 243 E

of the Constitution was absolute and it cannot be violated directly or indirectly. According to

Article 243E, of the Constitution of India, the term of the panchayat is of a fixed tenure, i.e., five

years from the date appointed for its first meeting and no longer unless sooner dissolved under

any law for the time being in force.Therefore, the State Legislature cannot trench upon the field

of Article 243E or Article 243K of the Constitution by deferring the elections of the panchayat

beyond five years and usurping the power of State Election Commissioner. The State cannot

claim any superior power in respect of the matters mentioned in Entry 5, of List II, which the

Constitution does not permit.



1049

696

Hence the writ petition was allowed and the impugned ordinance by means of which provisions

of U. P. Panchayat Raj Act were amended, was declared violative of Articles 243 E and 243 K

of the Constitution.

19. Ratio Decidendi- The State cannot claim any superior power in respect of the matters

mentioned in Entry 5, of List II, which the Constitution does not permit.

20. Obiter dicta- The ordinance overruling the constitutional provision is not valid and is ultra

vires the constitution. The entire Ordinance suffered from repugnancy to the Constitutional

provisions contained in Articles 243E and 243K of the Constitution. Any attempt on the part of

the State Government to nullify the effect of any provision of the Constitution deserved

depreciation



1050

697

XIV. Vijay Kumar v. District Magistrate, Siddharth Nagar



3. Bench- single judge

4. Name of Bench- SudhirAgarwal, J.

5. Case No.-C.M.W.P. No. 40514 of 2013

6. Name of the case- Vijay kumar v. district magistrate, Siddharth Nagar


8. Appellant- Vijay Kumar

9. Respondent- District Magistrate, Siddharth Nagar and Ors.



a. Whether the taking away of powers of the Gram Pradhan on the basis of the report of the

committee without conducting enquiry was justified, or not?

12. Grounds of challenge- Legality of taking away of powers of the Gram Pradhan on the

basis of the report of the committee without conducting enquiry


• Rais Ahmad vs. State of U.P. and Ors

• VivekanandYadav vs. State of U.P. and Ors; CRL.A. 741/2008

14. Area of dispute- powers



1051

698

15. Area of dispute category-Taking away of the powers of the pradhan

16. Provision of law involved-

Proviso to section 95(1)(g) of U.P. Panchayat Raj Act, 1947

Rule 6 of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry

Rules, 1997

17. Gist of case- The Petitioner was the Gram Pradhan, against whom a complaint was filed

by one of the Respondents alleging irregularities in the former’s functioning. Upon the

complaint District magistrate issued a letter calling upon chief development officer and others.

The chief development officer constituted a committee consisting of District Basic Education

Officer, District Panchayat Raj Officer and Assistant Engineer, District Rural Development

Authority to hold enquiry and a report was submitted which also found certain allegations of

embezzlement/misappropriation to be true.

On the report submitted, district magistrate issued a show cause notice to the Petitioner to show

cause as to why action under Proviso to section 95 (1)(g) of Act, 1947 should not be taken

against him.

The Petitioner filed a reply to the notice, after which the District Magistrate passed an order

dated 23rd March 2013, taking away the administrative and financial powers, which the

Petitioner had as the Gram Pradhan. The present petition was filed against the aforeheld order.

18. Operating portion of the judgment- The court in detail analyzed Vivekanand Yadav v.

State of U.P. and another wherein it was stated that The District Magistrate can order a

preliminary enquiry on the complaint or otherwise, preliminary enquiry may not be necessary if

the proceeding for removal is to be undertaken without ceasing power of pradhan in respect to

administrative and financial matters.

The court held that even if enquiry has not been ordered by District Magistrate but if such a

preliminary report was available, it can be acted upon for the purpose of passing an order under

Proviso to section 95(1)(g) U.P. Panchayat Raj Act, 1947.

Hence the writ petition was accordingly dismissed.



1052

699

19. Ratio Decidendi- If enquiry has not been ordered by District Magistrate but a preliminary

report was available, it can be acted upon for the purpose of passing an order under Proviso to

section 95(1)(g) U.P. Panchayat Raj Act, 1947.

20. Obiter Dicta- --



1053

700

XV. Virendra Singh v. Indian Oil Corporation Limited




4. Name of Bench- Amreshwar Pratap Sahi and V.K. Birla, JJ.

5. Case No.-C.M.W.P. No. 34906 of 2014

6. Name of the case- Virendra Singh v. Indian Oil Corporation limited


8. Appellant- Virendra Singh

9. Respondent- Indian Oil Corporation Limited

10. Case types-Writ Petition(Civil)


a. Whether rejection of candidature on the ground that the actual place of the godown was not

same as the place advertised, was justified, or not?

12. Grounds of Challenge- Legality of rejection of candidature on the ground that the

actual place of the godown was not same as the place advertised.



15. Area of Dispute Category-Disputes among Panchayats and State Department and

Agencies



1054

701

16. Provisions of law involved-Section 2(h), 2(t), 11-F , 12 of the U.P. Gram Panchayat

Act, 1947.

17. Gist of case- The petitioner was a resident of village Gauspur in District Ghazipur. He

applied for the award of retail outlet under the Rajiv Gandhi LPG Distributorship Scheme. The

petitioner's candidature was rejected on the two grounds; firstly the land that was offered by the

petitioner for the purpose of godown was not situated at the place advertised and secondly the

information with regard to availability of the funds in his bank account was found incorrect.

Hence, the writ petition was filed

18. Operating portion of the judgment-The Court held that a Gram Panchayat can consist

of several villages. However the rules of the concerned scheme stated that the godown has to be

located at the advertised place. Advertisement clearly recited that the godown has to be located

at the advertised place.Since it was found that the Petitioner did not mention the exact place in

the advertisement, his candidature was liable to be rejected.

Hence the court dismissed the petition accordingly.

19. Ratio Decidendi- If the advertisement categorically mentions any location specifically

(godown in this case), it has to be located there itself.

20. Obiter dicta- --



1055

702

XVI. Ram Narain v. Dy. Director of Consolidation



3. Bench- single bench

4. Name of Bench-Ram Surat Ram (Maurya), J.

5. Case No-Writ-B No. 31495 of 2006

6. Name of the case- Ram Narain v. dy. director of consolidation


8. Appellant- Ram Narain

9. Respondent- Dy. Director of Consolidation

10. Case types-writ petition


a. Whether the land in the matter belonged to the petitioner, or not?

b. whether the publishing of notification under section 117(6) of Uttar Pradesh Zamindari

Abolition And Land Reforms Act, 1950 for taking away the right from gaonsabha once the

property has been transferred to other is necessary , or not?

12. Grounds of Challenge- Necessity of publishing of notification under section 117(6) of

Uttar Pradesh Zamindari Abolition And Land Reforms Act, 1950 for taking away the right from

gaonsabha once the property has been transferred


• Mohammad Shafi vs. Gram SabhaBisauli



1056

703

• Narendra Kumar and another vs. Board of Revenue, Uttar Pradesh and others

14. Area of dispute- Property

15. Area of dispute category-Dispute over ownership of building or lands


Order XXII Rule 10 of the Code of Civil Procedure, 1908

Section 4,9-A (2) of the Uttar Pradesh Consolidation Of Holdings Act, 1953 -

Section 117,117(6), 117 A , 126, 127 , 18, 210 of the Uttar Pradesh Zamindari Abolition And

Land Reforms Act, 1950

17. Gist of case- The dispute related to a piece of land in village Ghorawal, district Sonbhadra,

which was declared as ‘banjar’ in the consolidation records. The Petitioners had filed an

objection to such a declaration, claiming possession over the land under section 9-A(2) of U.P.

Consolidation of Holdings Act, 1953. He claimed possession on the basis of a patta granted by

the Gram Sabha giving him ‘sirdari rights’ over the land.

However the Town Area Committee Ghorawal, Sonbhadra argued that the land was within the

limits of Town Area Ghorawal, and thus the Gram Sabha did not have the power to grant patta

over it. The consolidation officer heard the case and dismissed the objections of the petitioner.

The petitioner filed an appeal against such order and the settlement officer consolidation held

that petitioners could not prove execution of patta in their favour. On the basis of possession no

right could accrue over 'banjar' land. The petitioner then filed a revision which held the same.

Hence the writ petition was filed.

18. Operating portion of the judgment- The court, after analyzing Section 117-A of Uttar

Pradesh Zamindari Abolition and Land Reforms Act, 1950 concluded that the State government

had the power to transfer the land to any local authority other than the Gram Sabha. In 1954 all

the properties of GaonSabha were vested in Town Area authorities. It was then held that Gaon

Sabha had no jurisdiction to grant patta in 1969 to the petitioner.



1057

704

The court also relied on Section 8 of U.P. Panchayat Raj Act, 1947, which states that if the

whole of the area of GaonSabha was included in a city, municipality, cantonment, notified area

or Nagar Panchayat, the GaonSabha shall cease to exercise powers over such area.

On the aforeheld grounds, the writ petition was dismissed.

19. Ratio Decidendi- Under Section 117-A of Uttar Pradesh Zamindari Abolition and Land

Reforms Act, 1950, once the gaonsabha is included in a city, notified area or the cantonment , it

shall cease and its assets and liabilities shall be disposed of in the manner prescribed and

therefore the gaonsabha is left with no right to grant patta.

20. Obiter dicta- ---



1058

705

XVII. Ganesh Ram v. Chief Development Officer




4. Name of Bench- I.M. Quddusi, J.

5. Case No- C.M.W.P. No. 40851 of 1999

6. Name of the case- Ganesh Ram v. Chief Development Officer.


8. Appellant- Ganesh ram

9. Respondent- Chief Development Officer and ors.



a. ‘who can be the Inquiry Officer’?

b. Whether a Junior Engineer was an authorized person to hold preliminary enquiry under

Section 95(1)(g) of U.P. Panchayat Raj Act 1947?

c. Whether the District Panchayat Raj Officer was competent to conduct such inquiry as per Rule

4 of U.P. Panchayat Raj PradhanUpPradhan and Member Enquiry Rules, 1997?

12. Grounds of Challenge-Authority of Junior Engineer to hold preliminary enquiry under

Section 95(1)(g) of U.P. Panchayat Raj Act 1947 and competence of the District Panchayat Raj

Officer to conduct such inquiry as per Rule 4 of U.P. Panchayat Raj PradhanUp Pradhan and

Member Enquiry Rules, 1997



1059

706


14. Area of dispute- Power

15. Area of dispute category-Inquiry


a. Section 95(1)(g) of U.P. Panchayat Raj Act, 1947

b. U.P. Panchayat Raj PradhanUpPradhan and Member Enquiry Rules, 1997

17. Gist of case- In this case 2 writ petitions were heard together which were filed against

the orders passed by Chief Development Officer and Block Development Officer.

An order dated 6.1.99 was issued against the Petitioner, who was the Gram Pradhan and Village

Panchayat Officer for recovery of Rs. 67,855 after it was found (by the Junior Engineer

appointed by the Block Development Offficer) that they had misappropriated such amounts and

also their financial and administrative powers were to be exercised by the Block Development

Officer. Another order by the Block development officer dated 14.1.99 directed them to deposit

such amount and further not to draw any amount from Gram PanchayatJawaharYoujna or any

other account.

18. Operating portion of the judgment-The court after perusing Rule 4, Rule 5 and Rule

2(c) of U.P. Panchayat Raj Pradhan U.P Pradhan and Member Enquiry Rules, 1997, held that

only the District Panchayat Raj Officer was competent to conduct a preliminary inquiry in this

case.

A Junior Engineer in the instant case was not competent to conduct the preliminary enquiry

under Rule 4 of the Enquiry Rules and that too with the orders of the Chief Development

Officer. Since no enquiry was held under the relevant Rules, the report of the Enquiry Officer

cannot be made the basis of an action under the first proviso to Section 95(1)(g) of the Act.

The impugned orders dated 6.1.99 and 14.1.99 were quashed.

Hence the writ petition was allowed.



1060

707

19. Ratio Decidendi- If the preliminary inquiry is not held under the relevant rules, report of the

Enquiry Officer cannot be made the basis of an action under the first proviso to Section 95(1)(g)

of the U.P. Panchayat Raj Act, 1947.

20. Obiter Dicta- District Magistrate can only order the District Panchayat Raj Officer

concerned to conduct a preliminary enquiry.



1061

708

XVIII. Fakir Chand v. Nagar Palika




4. Name of Bench- Satya Prakash Srivastava and Kailash Nath Sinha, JJ.

5. Case No- F.A.F.O. No. 1010 of 2002

6. Name of the case- Fakir Chand v. Nagar Palika


8. Appellant- Fakir Chand

9. Respondent- Nagar palika

10. Case types-Appeal


a. Whether the title of the land belongs to the appellant even after the held land has transferred to

nagarpalika by the state government?

b. Whether trial court was justified in refusing temporary injunction?


The Plaintiff and his predecessor-in-interest had matured title in respect of the land in dispute

and that could be transferred in favour of the Plaintiff.



15. Area of dispute category-Ownership of land



1062

709

16. Provisions of law involved- Section 122 B of the Uttar Pradesh Zamindari Abolition and

Land Reforms Act, 1950; Rule 3AAA of the Uttar Pradesh Panchayat Raj Rules, 1947; Order 39

of the Code of Civil Procedure, 1908

17. Gist of case- The Plaintiff –Appellant claimed to have purchased a piece of land situated

in village Mohammadpur Dedha, district Ghaziabad, along with the house standing on it, in

January 1987 from one Dayawati. The Gaon Sabha had executed a patta for residential purposes

with respect to that land in favour of Dayawati in 1979, but in 1983 the State Government

transferred the land to Nagar Palika, Murad Nagar. For this reason after the Plaintiff bought the

land, the authorities instituted eviction proceedings against her, which was decided in favour of

Nagar Palika. The authority directed for the eviction of the plaintiff and delivery of possession of

the land to nagarpalika.

Subsequent to the order passed by the aforeheld authority, the Plaintiff filed the suit praying for

a decree of permanent injunction restraining the Defendant from interfering in any manner with

the possession of the Plaintiff. She unsuccessfully contested in the trial court after which the

present petition had been filed.

18. Operating portion of the judgment-The court held that ‘the rights flowing from the

patta in respect of a residential plot which was claimed to have been executed in favour of the

predecessor-in-interest of Dayawati were of a limited nature and were not transferable inter

vivos.’ The Plaintiff thus did not obtain a good title from the sale deed. Therefore the trial court

was justified in refusing temporary injunction.

Further it was observed that the GaonSabha acted as a transferor to the Nagar Palika vide the

order dated 1983of the State Government in respect of the land. Hence the appeal was dismissed.

20. Ratio Decidendi-The rights flowing from the patta in respect of a residential plot which

was claimed to have been executed in favour of the predecessor-in-interest of Dayawati were of

a limited nature and were not transferable inter vivos




1063

710

XIX. Usha Devi v. State of U.P.




4. Name of Bench- SudhirAgarwal J.

5. Case No- Civil Misc. Writ Petition No. 900 of 2014

6. Name of the case- Usha Devi v. State of U.P.


8. Appellant- Usha Devi

9. Respondent- State U.P

10. Case types-Writ petition


a. Whether the District magistrate can pass any order for ceasing financial and administrative

powers could have been passed under Section 95(1)(g) of Act,1947 based on the report of the

preliminary inquiry by Assistant Savings Officer.?

12. Grounds of Challenge- Power of the District magistrate to pass any order for ceasing

financial and administrative powers under Section 95(1)(g) of Act,1947 based on the report of

the preliminary inquiry by Assistant Savings Officer


• Vivekanand Yadav vs. State of U.P. and Ors.



1064

711


15. Area of dispute category-Dispute on Powers of State//ZP/BP/GP


95(1)(g) of U.P. Panchayat Raj Act, 1947

17. Gist of case- The Petitioner was elected as Gram Pradhan of Gram Sabha. One Manoj

Kumar filed a complaint against her alleging financial irregularities. On the held complaint, the

District Magistrate passed an order directing Chief development officer to take immediate

necessary action and appointed the District Savings Officer as the Enquiry officer. In the inquiry

some irregularities were found with respect to the construction works and the petitioner was

found to have misappropriated Rs. 7,97,744. A show cause notice was issued to the Petitioner

under Section 95(1)(g) of U.P. Panchayati Raj Act, 1947. The Petitioner in her reply denied all

allegations, after which the DM passed the impugned order restraining petitioner from exercising

financial and administrative powers in the capacity of Pradhan. This was done on basis of a

report submitted by the Assistant Director (savings). Hence the writ petition was filed

18. Operating portion of the judgment- The court held that the report submitted by Assistant

Director (Saving) was illegal and without jurisdiction. It would not qualify to be a relevant

document on which an order under Rule 3(5) read with Proviso to Section 95(1)(g) of the U.P.

Panchayat Raj Act, 1947for cessation off administrative and financial powers of Gram Pradhan,

could have been passed in view of law laid down by full bench in VivekanadYadav V. Sate of

U.P.

Assistant Director (Saving) was not a District Level Officer and, therefore, he would not satisfy

definition of "Enquiry Officer" under Rule 2(c) of Rules, 1997. His report therefore, also cannot

treated to be a "preliminary enquiry report" submitted by a EnquiryOfficer, as defined in Rules

1997. The writ petition was allowed and the impugned order is quashed.

19. Ratio Decidendi- Assistant Director (Saving) is not a District Level Officer and,

therefore, he does not satisfy the definition of "Enquiry Officer" under Rule 2(c) of Rules, 1997.

Report Submitted by such an officer cannot treated to be a "preliminary enquiry report"

submitted by a Enquiry Officer.



1065

712

20. Obiter dicta- Assistant Director (Saving) not being a District Level Officer, his reports

would not qualify to be a relevant document on which an order under Rule 3(5) read with

Proviso to Section 95(1)(g) of the U.P. Panchayat Raj Act, 194



1066

713

STATE OF WEST BENGAL

I. Ajit Kumar Chatterjee & Ors v. Electoral Registration Officer, Bhatar & Ors

1. State- West Bengal

2. Court- Calcutta High Court


4. Name of Bench- Sinha, J.

5. Case No-Civil Revision Case No. 2116 of 1959

6. Name of the case- Ajit Kumar Chatterjee & Ors v. Electoral Registeration Officer,

Bhatar & Ors


8. Appellant- Ajit Kumar Chatterjee & Ors

9. Respondent-Electoral Registeration Officer, Bhatar & Ors

10. Case types- Election


a. Whether, or not the election to the Gram Sabha could be challenged on ground of irregularities

and wrong preparation of electoral rolls?

12. Grounds of challenge- Legality of challenging the election to the Gram Sabha on

grounds of irregularities and wrong preparation of electoral rolls





1067

714



West Bengal Panchayat Act, 1957 - Section 7

17. Gist of case-

The election took place on the strength of the electoral roll and the respondent was elected.The

election of Gushkara Gram Panchayat is made from the members of a Gram Sabha who consist

of the voters in the Bhatar Legislative Assembly Constituency Electoral Roll, prepared in

accordance with the provisions of the Representation of the People Act, 1950 and the Rules

made thereunder. The petitioner claims to be a member of the Gram Sabha.

This instant application was made challenging the election on the ground that the Electoral

Registration Officer had the duty to hear objections and he did not give any notice to many

objectors including the petitioners.It was further said that the names have been illegally included

in the electoral roll and it is wrongly prepared.

18. Operating portion of the judgment-

The court said that section 7 of the aforesaid act shows that Gram Sabha will consist of all

persons whose names were included in the electoral roll of the West Bengal Legislative

Assembly. The electoral roll must be prepared in accordance with the provisions of the act and

once it is made, it will be conclusive and cannot be challenged on the ground that electoral roll

has not been righlty prepared.

The court held that it is not possible in this case to go into the question as to whether the

electoral roll had been properly prepared under the provisions of the Central Act. On this single

ground, the application must fail.The application stands dismissed.


An election held on the basis of an electoral roll, cannot be challenged on the ground that the

electoral roll has not been rightly prepared.

20. Obiter dicta- ----



1068

715

I. Nur Bux v. The State & Ors.




4. Name of Bench- Banerjee, J.

5. Case No-Civil Revision Case No. 1677 of 1959,

6. Name of the case- Nur Bux vs State and ors


8. Appellant- Nur Bux

9. Respondent- The State & ors



a. Whether Rule 22 of the Rules under the West Bengal Panchayat Act, 1956 made an arbitrary

delegation of powers to the Presiding Officer by authorizing him to hold lot in such manner as

he may deem fit and should be declared to be bad for that reason?


Power of the Presiding Officer under Rule 22 of the Rules under the West Bengal Panchayat

Act, 1956 to hold lot in such manner as he may deem fit



15. Area of dispute category – Cancellation



1069

716



17. Gist of case-

There was an election where respondent no. 5 and Petitioner secured equal votes and therefore

the presiding officer of the election decided to have selection made by a lot. The method

employed by him was to spin a coin, with one side thereof adopted by each of the candidates,

and to declare the candidate elected, whose side of the coin fell uppermost. Respondent no 5 was

declared elected and petitioner moved to the high court under article 226 of the Constitution. The

petitioner contended that Rule 22 of the Rules under the West Bengal Panchayat Act, 1956 made

an arbitrary delegation of powers to the Presiding Officer by authorizing him to hold lot in such

manner as he may deem fit and should be declared to be bad for that reason.


The court held that under Rule 22 nothing is left to the discretion of the Presiding Officer

excepting selecting the manner of the lot. Apart from selecting the manner of drawing of the lots,

the entire thing is left to chance and the chance alone.In matters of equality of votes the selection

has to be made either by the casting vote of the Presiding Officer or by drawing lots, if re-

election in such circumstances is not contemplated. The court said that by entrusting the

Presiding Officer to settle the matter by drawing lots, there takes place no excessive delegation

of powers to the Presiding Officer. Apart from, selecting the method of drawing the lot, he does

nothing more but leaves everything to chance and declares what chance decides. This cannot be

in any sense of the term be characterized as excessive delegation.


In matters of equality of votes the selection has to be made either by the casting vote of the

Presiding Officer or by drawing lots, if re-election in such circumstances is not contemplated.

20. Obiter dicta-

By entrusting the Presiding Officer to settle the matter by drawing lots, there takes place no

excessive delegation of powers to the Presiding Officer.



1070

717

II. Nitya Gopal De v. The State of West Bengal and Ors.




4. Name of Bench- P.B. Mukharji, J.

5. Case No- C.R. No. 4047 of 1960

6. Name of the case- Nitya Gopal De v. The State of West Bengal and Ors


8. Appellant- Nitya Gopal De

9. Respondent- The State of West Bengal and Ors

10. Case types- writ petition (overruled)


a. Whether the election of Pradhan was liable to be set aside due to his being a foreigner?

b, Whether the petitioner has right to a writ under Article 226 of the Constitution ?


Legality of election of the Pradhan on the ground of being a foreigner


• N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 S C R 218, AIR

1952 SC 64;

• A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506; Bombay v.

• Govind Laxman, AIR 1949 Bom 229



1071

718


15. Area of dispute category-Eligibility of the candidate


Section 3 of the Foreigners Act, 1946

Sections 7, 27, 55, 117 of the West Bengal Panchayat Act, 1957

Rule 30 of the West Bengal Panchayat Rules, 1958

Article 226 of the Constitution of India

17. Gist of case-

The application was filed under Article 226 of the Constitution by the petitioner against the

election of Pradhan i.e respondent no.3 under the West Bengal Panchayat Act of 1956 whom the

petitioner claimed was a foreigner Pakistan National and he was served with Quit Notice as he

was residing in the Indian Union without a valid and legal Passport and visa.


The court said that a foreigner cannot be a Pradhan under the West Bengal Panchayat Act, 1956

and at the time when he was getting elected as a Pradhan , there was an order by a responsible

State Government and the Civil Authority acting thereunder declaring him to be a foreigner and

having served upon him an order to quit India on that ground.

The Court said that Rule 30 of the West Bengal Panchayat Rules 1958, only empowers a

candidate to the office of the Pradhan to file an election petition and no one else and the

petitioner himself was not a candidate for the office of the Pradhan.The petitioner had no

alternative remedy by way of an election petition in the present case.

The election of the respondent was set aside.



1072

719


A person who is not an Indian citizen shall not be eligible to contest election of Pradhan of

Panchayat.

20. Obiter dicta-

Rule 30 of the West Bengal Panchayat Rules 1958, empowers a candidate to the office of the

Pradhan to file an election petition and no one else.



1073

720

III. Sultan Khan v. Sailesh Chandra Nundy




4. Name of Bench- R.S. Bachawat and Ramendra Nath Dutt, JJ.

5. Case No- Civil Revn. Case No. 1025 of 1961

6. Name of the case- Sultan Khan v. Sailesh Chandra Nundy

7. Date of Judgment-27.11.1962

8. Appellant- Sultan Khan

9. Respondent- Sailesh Chandra Nundy

10. Case types-Civil revision case


Whether an election as a member of the Gram Panchayat or an election as a member of the

Anchal Panchayat constituted under the West Bengal Panchayat Act, 1956 can be set aside by

the election tribunal on the ground that the candidate was not a citizen of India?


Legality of an election as a member of the Gram Panchayat or an election as a member of the

Anchal Panchayat constituted under the West Bengal Panchayat Act, 1956 of a foreigner


• Akbar Khan Alam Khan v. Union of India, (1961) 2 SCA 649, AIR 1962 SC 70;

• Durga Shankar Mehta v. Raghuram Singh, AIR 1954 SC 520;

• Ghulam Mohiuddin v. Election Tribunal, AIR 1959 All 357;



1074

721

• Stowe v. Jolliffs, (1874) LR 9 CP 734;

• Re Stepney Election Petition, Isaacson v. Durant,(1886) 17 QBD 54;

• Ajit Kumar Chatterjee v. Election Roll Registration Officer, Bhatar, 64 Cal WN 205;

• State of Andhra Pradesh v. Abdul Khader, 1961-2 SCA 643, AIR 1961 SC 1467;

• Ataur Rahaman Sardar v. Deputy Secretary, Home Department 66 Cal WN 108


15. Area of dispute category-Eligibility of candidates


Section 9 (2) Citizenship Act, 1955

West Bengal Panchayat Act, 1956

Sections 7, 11, 12, 27, 117 West Bengal Panchayat Act, 1957

Section 16, 16(1), 16(2) Representation of the People Act, 1950

17. Gist of case-

Election Tribunal held that Petitioner never acquired citizenship of India under the Constitution

of India and that he never became citizen of India. Therefore, the election of the petitioner was

set aside.Hence the revision was filed.


The court after analyzing Article 326 of the Constitution held that the person who was citizen of

India could be included in electoral roll. Section 16 of the Representation of the People Act deals

with such cases and it has been provided that person who was not citizen of India should be

disqualified for registration in electoral roll.

If at relevant time he was not citizen of India, then he had no legal right to be included in

electoral roll. In such a scenario, when person was incapable of being included in electoral roll



1075

722

under the provisions of Constitution itself, Election Tribunal was competent to set aside the

election on ground that there was no legal basis for inclusion of his name in electoral roll.

The election tribunal was justified in setting aside the election of the petitioner.


Basis for person's inclusion in electoral roll was that he was citizen of India.Therefore any

person who is a citizen of India shall be included in the electoral role.

20. Obiter dicta-

Election tribunal has the competence to decide whether a person’s name was rightly included in

the electoral roll and to set aside the election as a member of the gram panchayat



1076

723

IV. Lakshmi Mukherjee v.Tapan Kumar




4. Name of Bench- S.B. Sinha and S.N. Chakrabarty, JJ.

5. Case No- MAT No. 1888 of 1996

6. Name of the case-Lakshmi Mukherjee v.Tapan Kumar


8. Appellant- Lakshmi Mukherjee

9. Respondent- Tapan Kumar

10. Case types- Appeal


Whether, the functioning in the office, of the elected member of panchayat when his name was

not published in official gazette owing to the mistake of the officials, was valid or not?


Validity of the functioning in the office, of the elected member of panchayat when his name was

not published in official gazette owing to the mistake of the officials


• Govinddas v. I.T. Officer A.I.R. 1977 S.C. 552

• Vijayalakshmi Rice Mills v. State of A.P.1976 (3) S.C.C. 37

• R.K. Jain v.Union of India 1993 (4) S.C.C. 119;

• Hardwari Lal v. G.D. Tapse A.I.R. 1982 P&H 439;



1077

724

• Hari Vishnu v. Ahmed Syed A.I.R. 1954 Nag 166;

• Jayalakshmi Talkies v. Asstt. Commercial Tax Officer A.I.R. 1982 A.P.174

14. Area of dispute- Election.



Sections 4(4), 7(1), 141(1) , 96(1), 197 A of West Bengal Panchayat Act , 1973

Representation of People Act, 1957 - Section 73


17. Gist of case-

In an election of a Panchayat, the names of successful candidates were published except two

names though certificate was issued in their name.

It was challenged in a writ proceeding that the names of two members were not published in

official gazette which was required under the Sections 197A (b), 4(4) of the West Bengal

Panchayat Act, 1973, therefore they cannot participate in the functioning of the office and as

such the notice was bad. Accordingly, an interim order of stay of the said notice was passed but

during pendency of the writ, the names of the members in question were published in official

gazette and thus the instant appeal was preferred by said members.


By analyzing Sections 197A(b) and 4(4) of the West Bengal Panchayat Act, 1973 the court said

that the election to the office of member of a gram panchayat does not depend upon the issuance

of the notification in the official gazette.

A person cannot suffer owing to the mistake committed by any statutory authority. In a

democracy, a right to take part in the democratic process accrues as soon as a certificate is

granted and oath is administered in accordance with law.



1078

725

The appeal was allowed and the writ application by the petitioner was dismissed.


The election to the office of member of a gram panchayat does not depend upon the issuance of

the notification in the official gazette.

20. Obiter dicta-

A person cannot suffer owing to the mistake committed by any statutory authority.



1079

726

V. Srikanta Das Adhikari v. Jareswar Chanda and Ors.




4. Name of Bench- Amitava Lala, J.

5. Case No- C.O. No. 1676 of 2003

6. Name of the case-Srikanta Das Adhikari V. Jareswar Chanda and Ors


8. Appellant- Srikanta Das Adhikari

9. Respondent-Jareswar Chanda and Ors



Whether, or not in an Election petition, condonation of delay under Section 5 of Limitation Act,

1963 and Rule 77 of West Bengal Panchayat Election Rules, can be applied to allow the

application?


Legality of applying for condonation of delay under Section 5 of Limitation Act, 1963 and Rule

77 of West Bengal Panchayat Election Rules, in a Election petition to allow the application.


• Bhakti Bh. Mondal v. Khagendra K. Bandopadhya and Ors., AIR 1968 Calcutta 69;

• Shaik Saidulu alias Saida v. Chukka Yesu Ratnam and Ors., 2002(3) SCC 130;

• Hukumdev Narain Yadav v.Lalit Narain Mishra, 1974(2) SCC 133;



1080

727

• Mangu Ram v. Municipal Corporation of Delhi, 1976(1) SCC 392


15. Area of dispute category-Postponement



West Bengal Panchayat Act, 1973 - Section 2(15), Section 58, Section 204, Section 204(6)

Limitation Act, 1963 - Section 2, Section 3, Section 5, Section 29(2)

Representation of People Act, 1951 - Section 81

West Bengal Panchayat Election Rules – Section rules-Section 74, Section 77;

Code of Civil Procedure, 1908 (CPC) - Order 7 Rule 11

Indian Evidence Act, 1872

17. Gist of case-

This is an application under Article 227 of the Constitution of India. The petitioner challenged

an order passed by the learned Civil Judge wherein it was said that the West Bengal Panchayat

Act being a special law is hit by Section 29(2) of the Limitation Act, as such Section 5 of the

Limitation Act finds no application in the petition. It was contended that the Section 5 of the

Limitation Act provides that one can apply for condonation of delay having sufficient cause for

not preferring an appeal or making application but the application under Section 204 of the

Panchayat Act is not an application rather a proceeding in the nature of suit.


The court looked into the case of Shaik Saidulu alias Saida v. Chukka Yesu Ratnam and

Ors.wherein it was held that the word 'application' as appears in Section 5 of the limitation Act,

would include within its ambit an election petition wherein a voter or the candidate makes the



1081

728

prayer to the Court and seeks the redressal of his grievances regarding the conduct of the

elections.

The court observed that the structurally election petition is an application but the proceedings

will be regulated following the principles of suit.The general principle is that the Limitation Act

can be applicable to cases before it unless the applicability of Limitation Act is expressly

excluded by such special or local laws the same cannot be made inapplicable.

The court said that the in hearing the election petition either the Civil Judge or the District Judge

will act as a Court. The learned civil judge committed an error disallowing the application under

section 5 of the limitation Act.


The Limitation Act can be applicable to election petition unless the applicability of Limitation

Act is expressly excluded by such special or local laws the same cannot be made inapplicable.

20. Obiter dicta-

In hearing the election petition either the Civil Judge or the District Judge will act as a Court



1082

729

VI. Santi Ranjan Mirdha and Ors. V. State of West Bengal and Ors.




4. Name of Bench- J.K. Biswas, J.

5. Case No- W.P. No. 264(W) of 2004

6. Name of the case- Santi Ranjan Mirdha and Ors. V. State of West Bengal and Ors.


8. Appellant- Santi Ranjan Mirdha

9. Respondent-State of West Bengal and Ors.

10. Case types- Writ petition


Whether, or not, Section 4 (2A)(ii) of West Bengal Panchayat Act, 1973 was ultra vires the

provision of Article 243 C of the Constitution?


Constitutionality of Section 4 (2A)(ii) of West Bengal Panchayat Act, 1973 vis-a-vis Article

243 C of the Constitution


• Dr. Sukumar Mukherjee v. State of West Bengal and Ors., reported at 1992(1) CLJ 241


15. Area of dispute category- Decentralization



1083

730


Constitution Of India - Article 243(3), Article 243C, Article 243C(2),Article 243C(3)

West Bengal Panchayat Act, 1973 - Sections 140,32A, 4, 4(2A), 4(2A)(ii), 94

17. Gist of case-

The petitioners i.e the elected members of Gram Panchayat, have challenged the constitutional

validity of Section 4 (2A)(ii) of West Bengal Panchayat Act, 1973.

The petitioners have contended that Article 243C of the Constitution did not empower the

legislature of the state to make the impugned piece of law providing for the representation of the

members of the intermediate level Panchayats in the Panchayats at the village level whereas

section 4 (2A) (ii) of the act says that members of the Panchayat Samiti, not being Sabhapati or

Sahakari Sabhapati, elected, can be a member of Gram panchayat.


The court said that according to the scheme of things mandated by Article 243C of the

constitution it is only in the district and intermediate level Panchayats that persons not chosen by

direct election specifically for those forums can be sent on the strength of a legislation. Power

was given to the state legislatures to make law only for such purpose and not for the purpose for

which the impugned piece was made by the state legislature. The Court held Section 4 (2A)

(ii)of West Bengal Panchayat Act, 1973 is ultra vires the provisions in Article 243C of the

Constitution of India. It shall accordingly be deemed to be struck down. Hence, the writ petition

was allowed to this extent.


Section 4 (2A) (ii) of West Bengal Panchayat Act, 1973 is ultra vires as it goes against the

provisions in Article 243C of the Constitution of India

20. Obiter dicta-

Power was given to the state legislatures to make law only for such purpose and not for the

purpose for which the impugned piece was made by the state legislature.



1084

731

VII. Anwar Ali Khan v. Hazi Sajjad Ali Mondal Khan




4. Name of Bench- V.K. Gupta and P.K. Sen, JJ.

5. Case No- M.A.T. Nos. 1285 and 1288 of 1999

6. Name of the case- Anwar Ali Khan v. Hazi Sajjad Ali Mondal Khan


8. Appellant- Anwar Ali Khan

9. Respondent- Hazi Sajjad Ali Mondal Khan



a. Whether, or not the panchayat samiti by the virtue of Section 117West Bengal Panchayat Act,

1973 can grant license in the joint name?


Power of the Panchayat samiti by the virtue of Section 117 West Bengal Panchayat Act, 1973 to

grant license in the joint name

.


• Provash Chandra Dalui and Anr.v. Bishanath Banerjee and Anr. A.I.R. 1989 S.C. 1834

• Delhi Development Authority v. Durgachand Kanshish A.I.R. 1973 S.C. 2609

• State of Bihar and Ors.v. R.P.N. Sing and Ors A.I.R. 1961 S.C. 1649



1085

732


15. Area of dispute category-Dispute over ownership


West Bengal Panchayat Act, 1973 - Section 116, Section117, Section 133

Transfer of Property Act, 1882 – Section 73

West Bengal Zila Parishad Rules, 1964 - Rule 137;

West Bengal (Panchayat Samiti Administrative) Rules, 1984 - Rules 7, Rule 8, Rules 9,Rules 11

Constitution of India – Article 226

17. Gist of case-

The facts were, the respondent no 1 who was the writ petitioner had no title over the disputed

land but he was granted licence from year to year to hold 'hat' on the plot by the Panchayat

Samiti. Admittedly private Respondents had title over the said land. A civil suit was pending in

the court between writ Petitioner and the private Respondents in respect of title of the said plot.

The private Respondents applied for licence to run 'hat' and it was granted by the Samiti in a

joint ownership.The writ petitioner filed four writ petitions on different issues wherein private

respondents were stopped from running hat and possession was taken from them. Hence the four

appeals were filed by the private respondents.


The court said that Section 116 of the West Bengal Panchayat Act, 1973 was --- to the present

facts and circumstances of the case but the Section 117 of the West Bengal Panchayat Act will

apply.

Section 117 of the Act empowers the Panchayat Samiti to grant licence for a hat or a market

within its area. The provision of Section 117 is obligatory and an applicant was required to

obtain a licence for holding a hat or market. In Section 117 the expressions used were'owner and

lessee of a hat'.The court said that in the present case, writ Petitioner was neither a lessee nor an



1086

733

owner of the land therefore, it was not a case of licence. The case of the writ Petitioner,was that

he was so long holding the licence and running the hat but that cannot entitle him to apply for a

licence when the title in question was in dispute.

The court further added that the writ Petitioner has no right title or interest in the plot of the hat.

Right to run a hat is a right attached to the plot because a hat cannot be organized in the air, it

was a right embedded with the land upon which a hat was being held.

The Court also said that, law requires that before granting licence, the licence granting authority

shall get themselves satisfied about the prima facie title of the persons applying for

licence.Question of acquisition of title by writ Petitioner by continuous holding of the hat cannot

be decided by a writ court. It requires determination by a proper forum, butwhen the Panchayat

Samiti was prima facie satisfied about the ownership of theAppellants there was nothing wrong

in granting licence in the name of the Appellants.

The decisions of learned single judge were set aside and all the appeals were allowed.


Law requires that before granting licence, the licence granting authority shall themselves be

satisfied about the prima facie title of the persons applying for licence.

20. Obiter Dicta-

Question of acquisition of title by writ Petitioner by continuous holding of the hat cannot be

decided by a writ court.



1087

734

VIII. Alaya Khatun v. State



3. Bench- Single bench

4. Name of Bench- D.K. Seth, J.

5. Case No- Writ Petition No. 13782 (W) of 2000

6. Name of the case- Alaya Khatun v. State


8. Appellant- Alaya Khatun

9. Respondent- The State



a. Whether the Notice for requisitioning the Prodhan to convene meeting for its removal, shall be

lawful in the backdrop of proceeding pending in light of section Sections 11(1) and (2) and 12 of

the West Bengal Panchayat Act, 1973?


Legality of the Notice for requisitioning the Prodhan to convene meeting for its removal in the

backdrop of proceeding pending in light of section Sections 11(1) and (2) and 12 of the West

Bengal Panchayat Act, 1973.






1088

735


Sections 11(1), 11(2) and 12 of the West Bengal Panchayat Act, 1973

17. Gist of case-

The petitioner has challenged a notice by which 10 members had requisitioned the Pradhan to

convene a special meeting for removal of the Pradhan and previously there was a notice issued

pursuant to which no meeting was convened.The proceedings under section 11 of West Bengal

Panchayat Act, 1973 were pending against the person who was not present for three consecutive

meetings without the leave of the pradhan. The petitioner contended that the notice cannot be

issued until the decision is pending and the person against whom the proceeding is pending

cannot be a signatory to the notice for convening any meeting especially for removal of the

Pradhan under Section 12of West Bengal Panchayat Act, 1973.


The court held that the Third Proviso of Section 12 of West Bengal Panchayat Act, 1973 cannot

be attracted in a case where a meeting has not yet been convened and in the present case the

notice was withdrawn before the meeting .At the same time there cannot be any embargo to

withdraw the notice before the same was acted upon.

The court further held that the scheme of Section 11 of West Bengal Panchayat Act, 1973 clearly

indicates that removal becomes effective only when the order is passed. The Act does not

provide any provision in which it can be held that initiation of the proceeding would operate as

stay in respect of exercising the right by a member. Hence, the Writ Petition was dismissed.


The Third Proviso of Section 12 of the West Bengal Panchayat Act, 1973prohibits a fresh

meeting for the period of six months next, in case the meetinghaving been specially convened

for the removal of pradhan. This is --- in case the meeting has not yet been convened

20. Obiter Dicta-The scheme of Section 11 of West Bengal Panchayat Act, 1973 clearly

indicates that removal becomes effective only when the order is passed.



1089

736

IX. In Re: Mihir Mondal and Ors.




4. Name of Bench- Altamas Kabir, J.

5. Case No- (1994)1 CALL T 411(HC)

6. Name of the case- In Re: Mihir Mondal and Ors.


8. Appellant- Mihir Mondal

9. Respondent- NA

10. Case types- Writ


a. Whether the notice issued for the removal of pradhan and upapradhan was valid or not?

12. Grounds of Challenge

Validity of the notice issued for the removal of pradhan and upapradhan was valid or not?


• Soleman Shah and Ors. v. Director of Panchayat, Burdwan and Ors., 70 CWN 1088;

• Royhanand Ors.v. Chamatkar Maltiya and Ors., 89 CWN 1044

14. Area of dispute- Removal and non confidence motion

15. Area of dispute category- Suspension of surpunch



1090

737


Section 12,16 of West Bengal Panchayat Act, 1973

17. Gist of case-

In this writ application the petitioners have challenged a notice dated 25th January regarding the

meeting of Gram Panchayat be held for the purpose of ascertaining confidence of members

against Prodhan as also Upa-Prodhan, Pursuant to the resolution adopted at the meeting on 4th

February, 1994 the Prodhan and Upa-Prodhan were sought to be removed from their respective

offices.


The court held that the impugned notice was quashed and the application was allowed.


Sections 12 and 16 of West Bengal Panchayat Act, 1973 did not contemplate removal of

Prodhan and Upa-Prodhan in one meeting and two separate meetings were required to be held

for said purpose upon two separate notices.




1091

738

X. Benoy Kr. Ghosh and Ors. V. State of West Bengal and Ors.




4. Name of Bench- P.K. Samanta, J.

5. Case No-C.O. No. 2585(W) of 1996

6. Name of the case- Benoy Kr. Ghosh and Ors. V. State of West Bengal and Ors.


8. Appellant- Benoy Kr. Ghosh and Ors.

9. Respondent- State of West Bengal and Ors.



a. Whether Panchayat Samiti had acted beyond its competence and in gross violations of

provisions of sub section (2) of Section 109 of West Bengal Panchayat Act, 1973?


Validity of acts of the Panchayat Samiti under sub section (2) of Section 109 of West Bengal

Panchayat Act, 1973


14. Area of dispute- Powers

15. Area of dispute category-Dispute between Powers of Sarpanch & samiti


Sections 94,106,109,109(1), 109(2)13 West Bengal Panchayat Act, 1973



1092

739

17. Gist of case-

The petitoners -pradhans of four Gram Panchayats have challenged the authority of the

Panchayat Samity to implement developmental work within the areas of their respective Gram

Panchayats.The Petitioner alleged that Respondent/Panchayat Samiti had acted beyond its

competence and in gross violations of Section 109(2) of West Bengal Panchayat Act, 1973


The court held that under the amended provisions of Section 109 of West Bengal Panchayat Act,

1973, Panchayat Samity is absolutely within its power to execute work of any scheme mentioned

in sub section (1) of Section 109 of the Act within areas of its constituent Gram Panchayats

without any reference to such Gram Panchayats. The Proviso to Sub-section (2) of Section 109

can be appropriately read with qualification that execution of any scheme or performance of any

act or management of any institution or organisation which has been exclusively entrusted to

Panchayat Samity by State Government and/or any other authority can be implemented,

performed and carried out by Panchayat Samity even though same is confined to an area of a

Gram Panchayat.

Such work has been entrusted to Panchayat Samity either by State Government or by any other

authority; the qualifying factor is nature of scheme but not area of operation of scheme. Schemes

as aforesaid undisputedly extend to more than one Gram Panchayat, therefore concerned

Respondent/ Panchayat Samity was entitled to implement same and to execute work in

implementation of such schemes in areas of Gram Panchayats of petitioners.

Accordingly, the Petition was dismissed.


Panchayat Samity was absolutely within its power to execute work of any scheme mentioned

Section 109(1) of the West Bengal Panchayat Act, 1973 within areas of its constituent Gram

Panchayats without any reference to such Gram Panchayats



1093

740

20. Obiter Dicta-

The execution of any scheme or performance of any act or management of any institution or

organisation which has been exclusively entrusted to Panchayat Samity by State Government

and/or any other authority can be implemented, performed and carried out by Panchayat Samity

even though same is confined to an area of a Gram Panchayat.



1094

741

XI. Rahamat Sanpui Vs. The State of West Bengal and Ors.




4. Name of Bench-P.K. Deb, J.

5. Case No- W.P.12820 (W) of 2009

6. Name of the case- Rahamat Sanpui Vs. The State of West Bengal and Ors.


8. Appellant- Rahamat Sanpui

9. Respondent- State of West Bengal and Ors.



a. Whether, or not an elected Pradhan can be removed pursuant to the adoption of resolution of

“no confidence motion” against him in a meeting which has been specifically convened to

consider the issue as to whether Pradhan enjoys the confidence of house?


Legality of removal of elected Pradhan pursuant to the adoption of resolution of “no confidence

motion” against him in a meeting which has been specifically convened to consider the issue as

to whether Pradhan enjoys the confidence of house


• Soleman Shah and Ors. v. Director of Panchayat, Burdwan and Ors. 70 CWN 1088

• Rati Kanta Giri v. State of West Bengal and Ors. 98 CWN 889



1095

742

• Kitabuddin Seikh v. Daud Hossain and Ors. 101 CWN 413

• Ram Beti v. District Panchayat Rajadhikari and Ors. AIR 1998 SC 1222

• Amulya Mondal v. State of West Bengal and Ors. CWN (111) 1081

• Resida Khatoon and Ors. v. Block Development Officer and Ors. 2000 (1) C.L.J. 293

• Sri Dabir Mondal v. State of West Bengal;

• Royhan and Ors.v. Chamatkar Malitya and Ors. 89 CWN 1044

14. Area of Dispute- Removal and non confidence motion

15. Area of Dispute category-Suspension of surpunch


Section 4(2A), 12, 16, 16(1) of West Bengal Panchayat Act, 1973

Section 14 Uttar Pradesh Panchayati Raj Act

Article 14 of Constitution of India

17. Gist of case-

The Petitioner was elected as Pradhan of Gram Panchayat .Subsequently a no-confidence against

Petitioner was adopted in view of the seven members supporting the no-confidence motion.

Pursuant to this the Block Development Officer removed the Pradhan with immediate effect

.Hence, the present petition was made. The petitioner contended that an elected Pradhan can

only be removed in terms of the procedure laid down in Section 12 and 16 of the West Bengal

Panchayat Act, 1973


The court after perusing Section 12 and 16 of the West Bengal Panchayat Act, 1973 and

analyzing the judgment of the court in Kitabuddin Seikh v. Daud Hossain and Ors., Resida

Khatoonand Ors. v. Block Development Officer and Ors.andRoyhan and Ors. v. Chamatkar

Malitya and Ors , held that unless the meeting is specifically called for removal of Pradhan in

terms of Section 12 and 16 of the Act and the agenda in the meeting is the removal of Pradhan,



1096

743

the order of removal of Pradhan cannot be given effect to . By simple adoption of no confidence

motion against the Pradhan without a specific agenda in the meeting for removal of Pradhan, the

Pradhan cannot be removed

Accordingly the Petition was allowed.


By simple adoption of no confidence motion against the Pradhan without a specific agenda in

the meeting for removal of Pradhan, the Pradhan cannot be removed and the order for the

removal of pradhan cannot be given effect. An elected Pradhan can only be removed in terms of

the procedure laid down in Section 12 and 16 of the West Bengal Panchayat Act, 1973




1097

744

XII. Samar Samanta & Anr. v. State of West Bengal & Ors.




4. Name of Bench- P.K. Samanta, J.

5. Case No- C.O. No. 12949(w) 1994

6. Name of the case- Samar Samanta &Anr. v. State of West Bengal & Ors.


8. Appellant- Samar Samanta & Anr.

9. Respondent- State of West Bengal & Ors.



a. Whether , or not the failure of statutory authority to call for the meetings for the purpose of

removal of Pradhan and Upa-Pradhan and thereafter the petitioners themselves calling for the

two separate meetings in accordance with law was valid ?

12. Grounds of challenge- Effect of failure of statutory authority to call for the meetings

for the purpose of removal of Pradhan and Upa-Pradhan





Sections 12, 16, 209(3), 4, 9(6) of the West Bengal Panchayat Act, 1973



1098

745

17. Gist of case-

The Pradhan, the respondent No.8 was informed that both the Pradhan and Upa- Pradhan have

no confidence of the majority members and asked the pradhan to convene a meeting of the Gram

Panchayat for their removal. The Pradhan did not convene the meeting and the members

convened two separate requisition meetings by two separate notices.

Pradhan and Upa-Pradhan of the Gram Panchayat were removed and the writ petitioner No. 1

was appointed as an acting pradhan by the District Magistrate and the prescribed authority

requested the removed Pradhan to make over charge of the office of the Pradhan to the petitioner

No. 1 but the same was not done.Election date was fixed by the prescribed authority and writ

petitioner no 1 was elected as Upa-pradhan.

After the aforesaid election the removed Pradhan, made an application under Section 209(3) of

the West Bengal Panchayat Act, 1973 before the District Magistrate, for setting aside the

aforesaid resolutions. Thereafter the removed Upa-Pradhan(respondent No. 9) moved a writ

petition in this Court which directed the District Magistrate to dispose of the said application

filed by the respondent No. 8

In pursuance of such direction the District cancelled the two resolutions and also the consequent

elections.The aforesaid order was challenged in this writ petition.


The court after analyzing section 12 and 16 of the West Bengal Panchayat act,1973 held that the

requisition in writing is not itself a notice of meeting for the purpose of removal of Pradhan or

the Upa-Pradhan of a Gram Panchayat. Such requisition in writing merely brings in to the

knowledge of the statutory authority the intention of the majority members to call a meeting of

the Gram Panchayat either for the purpose of Section 12 of the Act or for any other purposes.

In this particular case such requisition clearly conveyed that majority members intend to remove

the Pradhan and Upa-Pradhan. Such intention being clear to the statutory authority ,itwas the

statutory obligation to place the intention of the majority members in a meeting of a Gram

Panchayat.



1099

746

The failure on the behalf of the statutory authority to convene the meeting doesnot vitiate the

proceedings because the proceeding subsequent to the requisition law being not solely dependent

upon the requisition, the irregularity if there be any, in the requisition, if regularised in the

proceeding there for with not vitiate the proceeding.

Accordingly the impugned order by the district magistrate is set aside and prescribed authority

was directed to restore petitioner no. 1 to the post of pradhan and petitioner no. 2 to the post of

upa-pradhan.


The requisition in writing for removal of Pradhan or the Upa-Pradhan is not itself a notice.The

failure on the behalf of the statutory authority to convene the meeting for does not vitiate the

proceedings

20. Obiter Dicta-

The failure on the behalf of the statutory authority to convene the meeting doesnot vitiate the

proceedings because the proceeding subsequent to the requisition law being not solely dependent

upon the requisition, the irregularity if there be any, in the requisition, if regularised in the

proceeding there for with not vitiate the proceeding.



1100

747

XIII. Hitendra Chandra Choudhury v. State of West Bengal & Ors.




4. Name of Bench- D.N. Sinha, J.

5. Case No- Civil Revision No. 328(W) of 1964

6. Name of the case- Hitendra Chandra Choudhury v. State of West Bengal & Ors.


8. Appellant- Hitendra Chandra Choudhury

9. Respondent- State of West Bengal & Ors.

10. Case types-Civil revision


a. Whether or not, the provisions of the West Bengal Panchayat Act, 1956 were ultra vires the

Constitution of India?

12. Grounds of challenge- Constitutionality of the provisions of the West Bengal Panchayat

Act, 1956.


• Chiranjit Lal Chowdhuri vs. The Union of India (UOI) and Ors., 1950 SCR 869

• The State of West Bengal vs. Anwar Ali Sarkar , 1952 AIR Cal 150


15. Area of dispute category - Cancellation


Section 6 of the Bengal Municipal Act, 1932

Article 14,15, 16, 17, 18, 19(1) a of the Constitution Of India

Section 3 of the Drugs And Magic Remedies (objectionable Advertisements) Act, 1954

Section 5(7A)Income Tax Act, 1961 -



1101

748

17. Gist of case-

The petition was filed by the petitioners and the grievance of the petitioners was that the

constituency-wise voters' list was never published at all and the same was inaccurate, because a

number of persons belonging to different Gram Sabhas have been included in the constituency

No. 1 of the Bhagirathpur-Babupara Gram Sabha, whereas a number of persons whose names

appear in the West Bengal Assembly Voters' list in the area have not been enlisted in the voters

list prepared for the said Gram Sabha. It is then said that the candidates whose nomination

papers have been accepted and who have been elected, are not entitled to stand for election,

being defaulters in the payment of Union Board dues. It is said that the Gram Sabha and the

Anchal Panchayat have been arbitrarily constituted and its numerical strength was fixed

arbitrarily. In this application the validity of various provisions of the West Bengal Panchayat

Act, 1956 (WestBengal Act 1 of 1957) have been challenged.


The court said that the sections 3, 5, 7, 25 and 26 of the West Bengal Panchayat Act, 1956 were

intra vires and do not suffer either from the defect of excessive delegation of legislative power or

discrimination under Art. 14 of the Constitution.

The court further said that the “Section 11(2) and (3) of the West Bengal Panchayat Act, 1956

suffers from the defect of excessive delegation of legislative power and also discrimination and

violative of Art. 14 of the Constitution and consequently they are invalid”.

The prescribed authority, in drawing up a list of the names of persons either in the electoral roll

of the Gram Sabha or a constituency must publish them and afford opportunity for claims and

objections. If the specific rules are not made for that purpose the matter will be governed by

rules 7, 8 and 9 of the rules made for Union Boards under the provision of the Bengal Village

Self-Government Act, 1919. The court said that the same was not done in the present case.

The court said that the these rules must be made absolute and election of the respondent must be

set aside.



1102

749


Section 11(2) and (3) of the West Bengal Panchayat Act, 1956 suffers from the defect of

excessive delegation of legislative power and is also violative of Art. 14 of the Constitution.

20. Obiter Dicta-

The prescribed authority, in drawing up a list of the names of persons, either in the electoral roll

of the Gram Sabha or a constituency must publish the same and afford opportunity for claims

and objections.



1103

750

XIV. Kanai Betal v. State of West Bengal




4. Name of Bench- D. Basu, J.

5. Case No- Civil Rule Nos. 890 and 891

6. Name of the case- Kanai Betal v. State of West Bengal


8. Appellant-Kanai Betal

9. Respondent- State of West Bengal

10. Case types-Civil rule


a. Whether fairness of election being a question of fact, can be urged as a ground for challenging

the election?

b. Whether or not, the remedy by way of election petition under Rule 30 of the West Bengal

Panchayat Rules was illusory?


Legality of challenging the election on the ground of fairness






1104

751


Rule 22, 23, 24, 27,27(6), 30 of the West Bengal Panchayat Rules, 1958

Section 27 of the West Bengal Panchayat Act -

17. Gist of case-

The Petitioner challenged the validity of the election of the Hazipur Anchal Panchayat on

grounds that the election was not fair as the Respondent No. 6, who was eventually elected by a

margin of two votes, prevented two of the Petitioner's supporters from voting by physical

detention, and also that the remedy under Section 30 of the West Bengal Panchayat Rules, 1958,

was illusory as it fixes a period of 30 days limitation by a comprehensive Rule rather than

providing for separate rules for the bringing of election petition for election to a number of

offices like, memberships of Gram Panchayat and Anchal Panchayat, and Adhyaksha,

Upadhyaksha, Pradhan and Upapradhan thereof.


The court said that Petitioner's first ground i.e the election was not fair in asmuch as opposite

party physically detained two supporters of the Petitioner beyond the date of the election so that

they could not vote in the Petitioner's favour is Prima facie a question of fact and a ground

which can be urged in an election petition under Rule 30 of the West Bengal Panchayat Rules,

1958.

The court further added that the dates of the declaration of the result of the offices in the Gram

Panchayat and the Anchal Panchayat being different under Rules 22, 23, 24 and 27(b) ,a person

wanting to challenge the election to any of these offices in the Gram Panchayat would not be

obstructed because of the same period of time being limited by Rule 30 of the West Bengal

Panchayat Rules, 1958.

The Rule was, accordingly, discharged.



1105

752


Fairness of election being a question of fact can be urged in an election petition under Rule 30 of

the West Bengal Panchayat Rules, 1958.

20. Obiter Dicta-

The opposite party physically detained two supporters of the Petitioner beyond the date of the

election is a question of fact and a ground which can be urged in an election petition under Rule

30 of the West Bengal Panchayat Rules, 1958.



1106

753

XVI. Anil Pahar V.Subhas Mahato And Ors.



3. Bench- divison bench

4. Name of Bench-A.K. Sen and P.K. Majumdar, JJ.

5. Case No- Civil Order No. 3290 of 1983

6. Name of the case- Anil Pahar Vs. Subhas Mahato and Ors.


8. Appellant- Anil Pahar

9. Respondent- Subhas Mahato and Ors

10. Case types- Revision applicatiom


a. Whether an applicant under Section 204 of the said Act is required to comply with Section 80

of the Code in the matter of preferring an election petition?


Requirement for an applicant under Section 204 of the said Act to comply with Section 80 of the

Code in the matter of preferring an election petition


• State of Seraikella v. Union of India, AIR 1951 SC 253





1107

754


Section 204 of the West Bengal Panchayat Act, 1957

Rule 75 of the West Bengal Panchayat Rules

Section 80 of the Code of Civil Procedure, 1908

17. Gist of case-

The petitioner contested the election for the post of Pradhan but he lost to the opposite party

No.1. The petitioner then, instituted the aforesaid Election Dispute case by filing an application

under Section 204 ofthe West Bengal Panchayat Act, 1957in the court of the learned Munsif.

The opposite party appeared and raised a preliminary objection that since no notice under

Section 80(1) of the Civil P.C. had been served upon the Government and the Polling Officer nor

any leave had in the alternative been obtained, the election petition was not maintainable. Such

an objection was upheld by the learned Munsif, and the election petition was dismissed without

going into the merits. Hence the petitioner moved to this court in revision


The court said that the Section 80 of the Code of Civil Procedure prescribes a rule of procedure

which has to be fulfilled prior to the institution of the suit. It appears clear from the provisions of

the statute and the Rules, that the Legislature having itself prescribed the procedure for filing or

institution of election petitions had adopted the Code only for the purpose of trial of such cases.

Rule 75 of the West Bengal Panchayat Rules has not adopted the whole Code rather has adopted

such of the provisions thereof as are applicable at the stage of trial of suits.

The Act and the Rules had prescribed their own procedure as to how an election petition is to be

filed and has also provided that once such a petition has been filed,fulfilling the requirements

prescribed therefore, the tribunal shall forthwith proceed with the enquiry, i.e. with the trial of

such a case.

Hence in court’s view, the legislature had not adopted Section 80 of the Code of Civil Procedure

and had not made it applicable to election petitions under Section 204 of the of the West Bengal

Panchayat Act, 1957



1108

755

Hence the petition was allowed.


Section 80 of the Code of Civil Procedure had not made applicable to election petitions under

Section 204 of the of the West Bengal Panchayat Act, 1957 by the legislature

20. Obiter Dicta-

The Legislature having itself prescribed the procedure for filing or institution of election

petitions had adopted theProcedure Code only for the purpose of trial of such cases



1109

756

XVII. Midnapur Zilla Parishad V. State of West Bengal




4. Name of Bench-A.K. Sen, J.

5. Case No- Civil Rules 1905 (W), 3250 (W), 3251 (W), 3304 (W), 3305 (W) and 3306 (W) of

1969

6. Name of the case- Midnapur Zilla Parishad v. State of West Bengal


8. Appellant- Midnapur Zilla Parishad


10. Case types- writ petition


a. Whether the order of the state government was ultra vires of the powers of the state

government?

b. Whether the legislation was made out of any improper or malafide motive?


Constitutionality of the order of the Satte Government


• Commissioner of Police, Bombay vs. Gordhandas Bhanji 1952 SCR 135

• State of Orissa vs.Dr. (Miss) Binapani Dei and Ors., 1967 SCR (2) 625



1110

757


15. Area of dispute category- Dispute on the power of the state


Secion 26(1)b of the West Bengal Panchayat Act, 1957

Sections 10, 107,108,109, 109A,11, 12, 17, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,

34, 35, 37, 38, 39, 40,41, 42, 43, 44, 45, 46, 47, 48, 49, 4(1), 5, 50, 51, 52,53. 54, 55, 56, 57, 6,

60, 62 , 65, 7, 8. 9. 93 of the West Bengal Zilla Parishads Act, 1963.

17. Gist of case-

These rules were issued on applications under Article 226(1) of the Constitution. In all these

applications orders dated April 23, 1969 were disputed and in all, same terms were passed by the

State of West Bengal in exercise of its powers under section 109A of the West Bengal Zilla

Parishads Act 1963. By this order the State of West Bengal has put the petitioners, the Zilla

Parishads under the control of administrators the result whereof was to supersede the members

of the Parishads for reasons set out in the order. The petitioners before this Court were the Zilla

Parishads together with in some cases the Chairman and the Vice-Chairman thereof.


The court said that it is beyond its power to go into the question of the motive behind the

legislation or to adjudicate whether a particular piece of legislation was made out of any

improper or malafide motive. It may be true that at times the Court has declared a particular

piece of legislation to be void on the ground that it was colourable but that was always with

reference to the jurisdiction or legislative competence of the legislature.

The court also said that “It may be open to this court to look into the substance of a particular

piece of legislation to adjudicate whether the same comes within the competence of the

legislature concerned or not and in the process of such adjudication if it is found that in disguise

the legislature seeks to transcend its limits it may be struck down as colourable but nonetheless it

is so struck down only on the ground that it is beyond the competence of the legislature. But if



1111

758

the legislation is within the competence of the legislature it is not open, in my view, to this court

to question the propriety or the motive of the legislature which has made the law”.

The court said that the conditions which confer the jurisdiction to the State Government to make

an order under Section 109A of the Zilla Parishad Act were all objective. It was not within the

decision or opinion of the State Government that such conditions exist. The State Government

cannot annul the Parishad or set aside the Constitution, it only fills up the temporary

vacuum.The court further said that the impugned order must be declared void.This Rule

accordingly succeeded in part in so far as it was on the behalf of the petitioner No. 3.

The writ of mandamus was issued commanding the respondents to not to give effect to or any

further effect to the impugned order made under Section 109A of the West Bengal Zilla Parishad

Act, 1963 in respect of the petitioner Zilla Parishad.


The conditions which confer the jurisdiction to the State Government to make an order under

Section 109A of the Zilla Parishad Act are all objective. It is not within the decision or opinion

of the State Government that such conditions exist.

20. Obiter Dicta-

It is beyond power of the court to go into the question of the motive behind the legislation or to

adjudicate whether a particular piece of legislation was made out of any improper or malafide

motive



1112

759

XVIII. Debi Prosad Singha Roy V. State of West Bengal and Ors.



3. Bench-Single bench

4. Name of Bench- M.N. Ray, J.

5. Case No- Civil Rule No. (W) of 1977

6. Name of the case- Debi Prosad Singha Roy v. State of West Bengal and Ors.


8. Appellant- Debi Prosad Singha Roy




a. Whether notification superseding Panchayat under Section 67 of the West Bengal Panchayat

Act, 1957 can be challenged by acting Pradhan of Panchayat?


Legality of challenging notification superseding Panchayat under Section 67 of the West Bengal

Panchayat Act, 1957 by acting Pradhan of Panchayat


• Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, AIR 1962 SC 1044; Gadde

• Venkataswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828

• Makhan Lal Chakravartty v. S.K. Chatterjee, AIR 1954 Cal 208

• Jivandas Khimji v. Smt. Narbada Bai, AIR 1959 Cal 519



1113

760

• Dr. A.N. Tendulkar v. C.F. Mathias, AIR 1965 Bom 187

• Ganesh Chandra Das v. Director of Rationing, (1977) 1 Cal LJ 60 (61);


15. Area of dispute category- Dispute among panchayat and between panchayat



West Bengal Panchayat Act, 1956 - Section 30, Section 67

17. Gist of case-

The petitioner, who was an elected member of the Kankuria Anchal Panchayat has impeached an

order dated December 31, 1976 whereby in terms of a notification issued under Section 67 of the

West Bengal Panchayat Act, 1957, the said Panchayat was superseded for a period of one year.

The petitioner contended that he was duly elected by the other memebrs of the said panchayat to

carry out the functions of the pradhan in the temporary absence of the duly elected

pradhan.Despite the overall improvements of the said Panchayat by a notification, the Governor

recorded his satisfaction on the report of the prescribed authority appointed for the purpose of

Section 67 of theWest Bengal Panchayat Act, 1956 that the said Panchayat was not competent to

perform and was guilty of default in the performance of duties under the West Bengal Panchayat

Act, 1956 and as such in exercise of powers under the said Section 67, the said Panchayat should

be superseded for a period of one year.

The said order was challenged on the grounds of being bad, void, illegal, irregular, unauthorised

and against principles of natural justice


The court said that the legal right that can be enforced underArticle 226, like Article 32, must

ordinarily be the right of the petitioner himself who complainsof infraction of such right and

approaches the Court for relief. The right that can be enforced under Article 226 also shall



1114

761

ordinarily be the personal or individual right of the petitioner himself, though in the case of some

of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified.

The court further said that the order in the case was quas- judicial , the application at the instance

of the petitioner and in the absence of a relevant and proper party viz., the said Panchayat, which

have a juristic character, would not be maintainable even though the other members of the said

Panchayat have been impleaded as respondents. Thus, the petition stood rejected.


The legal right that can be enforced underArticle 226, like Article 32, must ordinarily be the

right of the petitioner himself who complainsof infraction of such right and approaches the Court

for relief.




1115

762

XIX. Birendra Nath Jana and Ors. v. State of West Bengal and Ors.



3. Bench-Single bench

4. Name of Bench- M.N. Roy, J.

5. Case No- Civil Rule No. 2005 (W) of 1974

6. Name of the case- Birendra Nath Jana and Ors. v. State of West Bengal and Ors.


8. Appellant- Birendra Nath Jana and Ors.




a. Whether or not the name of the panchayat once notified can be changed?


Legality of changing the name of the panchayat once notified


• Ramachandra Reddy and Anr. vs. State of Andhra Pradesh and Ors. , AIR 1965 AP 40

• State of Madhya Pradesh and Ors.vs. Vishnu Prasad Sharma and Ors., 1966 SCR (3) 557


15. Area of dispute category- Dispute over ownership



1116

763


Sections 19, 22 of the Bengal General Clauses Act, 1899

Section 21 of the Bombay General Clauses Act, 1904

Article 226 of the Constitution Of India

Section 21, 25(2) of the GeneralClauses Act 1897

Section 4, 6 of the Land Acquisition Act, 1894

Section 25, 30 of the West Bengal Panchayat Act

17. Gist of case-

The petitioners, who were the residents and tax payers and some of whom were also office-

bearers of Gram Panchayats and Anchal Panchayats under Dhandalibarh Anchal Panchayat

,impeached in this Rule an action of the respondents wherein the respondents changed the name

of the panchayat to Debenrda Anchal Panchayat. Petitioners challenged it on the ground of being

illegal, irregular and unauthorised. The petitioners have alleged that without notification in the

Gazette, the original notification, whereby the name of the said Panchayat was given or notified

under the said Act, could not be correct


The court after considering the provisions of section 21 of the General Clauses Act

corresponding to the provisions in section 22 of the Bengal General Clauses Act, held that under

these provisions the Government, which has notified the name of an Anchal Panchayat will have

power and authority to issue necessary corrections as was done in the instant case.

The court further said that such power was of course to be exercised or allowed to be exercised,

when by such change, the nature and character of the Anchal Panchayat in question, was not

changed.



1117

764

State Government's action in issuing the corrigendum notification and thus to change the name

of the Anchal Panchayat to Debendra Anchal Panchayat, cannot be said to be unauthorised,

irregular or void.

On the question of the locus standi of the petitioners , the court said that it is not possible to

come to a conclusion that all the petitioners were neither interested as rate payers or as members

of the said Anchal Panchayat. Therefore the petition was maintainable.


The Government, which has notified the name of an Anchal Panchayat will have power and

authority to issue necessary corrections.

20. Obiter Dicta-

State Government's action in issuing the corrigendum notification cannot be said to be

unauthorised, irregular or void



1118

765

XX. Sasanka Sekhar Panda v. State of West Bengal & Ors.




4. Name of Bench- Mookerjee & Shamsuddin Ahmed, JJ

5. Case No- Order No. 3226 of 1985

6. Name of the case- Sasanka Sekhar Panda v. State of West Bengal & Ors.


8. Appellant- Sasanka Sekhar Panda

9. Respondent- State of West Bengal& ors



a. Whether, or not, the approval should be given to the holding of auction, acceptance of the bid

offered to Sabhapati Sagar Panchayat Samity and to settlement made in the favour of the said

authority?

b. whether the Sadhapati, Sagar Panchayat Samity was authorized to offer bids in auction for the

settlement of the ferry under the management of the Zilla Parishad?


Legality of giving approval to the holding of auction, acceptance of the bid offered to Sabhapati

Sagar Panchayat Samity and to settlement made in the favour of the said authority


• Maniruddin Bepari vs. The Chairman of the Municipal Commissioners, Dacca

Municipality, 164 Ind Cas 160



1119

766

• Sri Luxmi Janardan Jew and Anr.vs. State of West Bengal and Ors., AIR 1959 Cal 402

• Narendra Prosad Singh vs. State of West Bengal and Ors., AIR 1957 Cal 98

14. Area of dispute- Devolution

15. Area of dispute category-Devolution of power related


Sections 109, 128, 133, 159, 175 , 181(1)b of the West Bengal Panchayat Act, 1973

17. Gist of case-

The Court has previously issued order directing 24-Parganas Zilla Parishad to hold a fresh

auction in accordance with law for settlement of Kachuberia - Kakdwip Ferry subject to the

decision of the pending appeal and without prejudice to the rights and contentions of the parties

therein. Holding of the said auction and acceptance of the highest bid by the Zilla Parishad were

made subject to the final approval by this court.Pursuant to the order the notice for the holding

auction were issued and the highest bid tendered Sri Aditya Kumar Jana, Sabhapati, Sagar

Panchayat Samity was accepted.

The appellant made an application before this court for directing the respondent 1-6 to not to

give effect to the bid abovementioned.


The court said that Section 109 of the West Bengal Panchayat Act, 1973 enumerates the

different powers of a Panchayat Samity and authorise’s the Panchayat Samity to participate in a

public auction for settlement of ferry.

Under the proviso to section 128of the West Bengal Panchayat Act, 1973 the panchayat samity

has a “power to acquire, hold and dispose of property and to enter into contract ….”The proviso

to section 128 in all cases of acquisition or disposal of immovable property requires the

Panchahayt Samity to obtain the previous approval of the State Government.



1120

767

In the instant case there was no prior approval by the State Government to the settlement made

by the Zilla Parishad's in favour of Sabhapati, Sagar Panchayat Samity.Further the Zilla

Parishad's power to acquire hold and dispose of property and enter intocontract must be read in

the contract of its power and duties under the West Bengal Panchayat Act, 1973 and the Zilla

Parishad cannot claim that it had an unfettered right to enter into contract. The court said that the

Panchayat Samity had no lawful authority to enter into such contract in running of the said ferry

in question. The Zilla parishad was bound to observe the rules of fairplay and act in accordance

of law.

The Zilla parishad was directed to hold fresh auction.The Sabhapati, Sagar Panchayat Samity

was allowed to run the ferry till the fresh auction only on condition that within three weeks they

had to pay arrear dues, if any, to the Zilla Parishad.


The Zilla Parishad's power to acquire hold and dispose of property and enter into contract must

be read in the contract of its power and duties under the West Bengal Panchayat Act, 1973 and

the Zilla Parishad cannot claim that it had an unfettered right to enter into contract

20. Obiter Dicta-

The Panchayat Samity had no lawful authority to enter into such contract in running of Zilla

parishad.



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XXI. Bankim Chandra Banerjee and Ors. V. Distt. Panchayat Officer and Ors.



3. Bench-Singe bench

4. Name of Bench- D. Basu, J.

5. Case No- C.R. No. 293 (W) of 1961

6. Name of the case- Bankim Chandra Banerjee and Ors. v. Distt. Panchayat Officer and

Ors.


8. Appellant- Bankim Chandra Banerjee and Ors.

9. Respondent- Distt. Panchayat Officer and Ors.

10. Case types- Civil revision


a. Whether, or not section 57(1)a of the West Bengal Panchayat Act, 1957 was ultra vires the

legislative power of the state legislature?


Legality of Section 57(1) a of the West Bengal Panchayat Act, 1957 with respect to the

legislative power of the state legislature?


• Kunnathat v. State of Kerala, AIR 1961 SC 552

• Balaji v. Income Tax Officer, Special Investigation Circle. Akola, AIR 1962 SC 123

• Ralla Ram v. Province of East Punjab, AIR 1949 FC 81



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• Corporation of Calcutta v. Smt. Padma Debi, AIR 1962 SC 151

• Lokmanya Mills Barsi Ltd. v.Barsi Borough Municipality, AIR 1961 SC 1358

• R.C. Jail v. Union of India, AIR 1962 SC 1281

• Byramjee v. Prov. of Bombay, AIR 1940 Bom. 65

• Ram Narain v. State of Uttar Pradesh, AIR 1957 SC 18(23)

• Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661

14. Area of dispute-Finance

15. Area of dispute category-Income from own sources


Section 57(1), 120 of the West Bengal Panchayat Act, 1957

Article 19(1),226 of the Constitution of India

Rules 110, 118, 119 , 120 of the West Bengal Panchayat, 1958

17. Gist of case-

The Petitioners were aggrieved by the imposition of the tax made by the Anchal Panchayat in

exercise of its power under Section 57(1) (a) of the West Bengal Panchayat Act, 1950.An appeal

was preferred against the imposition of tax before the respondent no 1/Appellate

Authority.Petitioners failed to pay taxes, hence, notices for issue of distress warrant were issued

on all Petitioners. Hence, this application for quashing of all proceedings relating to assessment

of tax and order directing the opposite party not to give effect to the notices to issue distress

warrant.



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The court said that Rule 110 of the West Bengal Panchayat Rules, 1958deals with imposition of

taxes wherein actual profits or income derived from land or buildings were taxed. Part A of Rule

110 of the West Bengal Panchayat Rules, 1958 in essence imposes tax on non-agricultural

income on pretence of imposing tax on 'lands and buildings' which latter was within competence

of State Legislature and of Panchayat.

The court further said that under the relevant Entry of the 7th Schedule of the Constitution, the

State Legislature has the power to impose a tax on 'lands and buildings' but no power to impose

a 'tax on non-agricultural income'. If, therefore, while purporting to impose a tax on lands and

buildings the State Legislature imposes what was, in its substance, a tax on income on non-

agricultural land, such tax will be ultra vires and invalid.

The court held that the Section 57(1)(a) of Act and Rule 110, Part A and Expl. 1 to Rule 111 of

Rules made under Act was ultra vires.

The Rule was accordingly made absolute and the proceedings relating to the assessment and

recovery of the tax was quashed. The Opposite Parties were directed, by an order in the nature of

mandamus, not to give effect to the notices to issue distress warrants, served upon the

Petitioners.


The relevant Entry of the 7th Schedule of the Constitution, the State Legislature has the power to

impose a tax on 'lands and buildings' but no power to impose a 'tax on non-agricultural income'.

If, therefore, while purporting to impose a tax on lands and buildings the State Legislature

imposes what was, in its substance, a tax on income on non-agricultural land, such tax will be

ultra vires and invalid.

20. Obiter Dicta-

Tax can be graded according to volume or nature of property, but if it is graded according to

income derived from it, it becomes tax on income



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XXII. Niranjan Roy V. Dist. Panchayat Officer and Ors.




4. Name of Bench-Mookerjee, J.

5. Case No- C.O. No. 6291 (W) of 1977

6. Name of the case- Niranjan Roy v. Dist. Panchayat Officer and Ors.


8. Appellant- Niranjan Roy

9. Respondent- Distt. Panchayat Officer and Ors.

10. Case types- Civil original


a. Whether, the panchayat was authorized to impose and demand employment tax from the

petitioner?


Authority of the panchayat to impose and demand employment tax from the petitioner


• Mr. kamta prasad aggarwal etc. vs. executive officer, ballabgarh & anr.

• Prakash Chand Maheshwari and Anr.vs. The Zila Parishad, Muzaffarnagar and Ors

• Mahapalika of The City of Agra vs. The Agra Brick Kiln Owners Asscn. and Anr.




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15. Area of dispute category- Tax on income


Article 246,276 of the Constitution OfIndia

Section 57(1), 57 (1) b of the West Bengal Panchayat Act, 1957

Section 46, 47 (1)b of the West Bengal Panchayat Act,

17. Gist of case-

The petitioners were asked to pay employment tax imposed by the panchayat. Some of the

petitioners were employed as Lecturers, some of them as TutorLecturers and the remaining were

employed as non-teaching staff of Dhruba Chand Haldar College within the limits of the

Panchayat.


The court said that the Panchayat in question is a local authority. The demands made by the

Gram Panchayat cannot be invalid merely on the ground that reference had been made to the

repealed provision of section 57(1) of the West Bengal Panchayat Act, 1957 because section

46(1) of the West Bengal Panchayat Act, 1973 clearly vests Gram Panchayat to impose the taxes

specified in clauses (a) and (b) of sub-section (1) of section 46 of the said Act. Hence, the

application was summarily rejected.


The demands made by the Gram Panchayat cannot be invalid merely on the ground thatreference

had been made to the repealed provision of section 57(1) of the West BengalPanchayat Act,

1957 because section 46(1) of the West Bengal Panchayat Act, 1973 clearly vests Gram

Panchayat to impose the taxes specified in clauses (a) and (b) of sub-section (1) ofsection 46 of

the West Bengal Panchayat Act, 1973




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XXIII. Purnendu Sekhar Biring V. Govt. of West Bengal and Ors.




4. Name of Bench-K.M. Yusuf, J.

5. Case No- C.O. No 12193 (W) of 1988

6. Name of the case- Purnendu Sekhar Biring v. Govt. of West Bengal and Ors.


8. Appellant- Purnendu Sekhar Biring

9. Respondent- Govt. of West Bengal and Ors.

10. Case types- Civil original


a. Whether, the panchayat gave permission to the petitioner for the plying of trucks?


Whether, the panchayat gave permission to the petitioner for the plying of trucks


14. Area of dispute- Personnel system

15. Area of dispute category- Related to powers of panchayat


Section 25(1), 25 (2) (3), 25(2), 25(3), 42(1) 109(2) of the West Bengal Panchayat Act, 1973



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Article 40, 226 of the Constitution of India

17. Gist of case-

Petitioner was the owner of a brick field at Gamartalia in Sabajput in the district of Midnapore

and held registration certificates from the Government of West Bengal for carrying on the

business of manufacturing brick for considerably long period. Suddenly barricades were put on

the said road for obstruction to the plying of his trucks at the instruction of the Prodhan of No. 6

Sabajput Gram Panchayat.

The petitioner's case is that he is entitled to obtain a relief under specific performance of contract

in which the District Engineer; Midnapore Zilla Parishad is a party. The further case of the

petitioner is that the exercise of jurisdiction under Sections 25 and 42(a) of the West Bengal

Panchayat Act, 1973 is wholly arbitrary and illegal.


The court said that by virtue of sub-section (1) (a) of Section 42 of the West Bengal Panchayat

Act, 1973, all public streets other than those maintain by the Central or State Government or a

local authority or any other Gram Panchayat, shall vest in and belong to the Gram Panchayat and

the said Gram Panchayat shall with all other property of whatsoever nature or kind which may

become vested in the Gram Panchayat, shall be under its discretion, management and control.

The court further said that Section 109(2) of theWest Bengal Panchayat Act, 1973also confirms

the territorial jurisdiction of a Gram Panchayat over roads as provided in Section 42 thereof.

The court said that no permission was ever granted by the Gram Panchayat to the petitioner to

use the road in question by plying heavy vehicles loaded with bricks. The relief in a case of

specific performance of contract can only be given by a competent civil court and a writ petition

under Article 226 of the Constitution cannot deliver the fruit.

Hence, the writ application was dismissed.



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Relief in case of specific performance of Contract can only be given by competent Civil Court

and no relief can be granted under Article 226.

20. Obiter Dicta-

Gram Panchayat are well defined and the rights vested in the Gram Panchayats cannot be taken

away by Zilla Parishads by the stroke of pen of any official of Zilla Parishad.



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CONCLUSION

The Panchayati Raj system got its constitutional validity from the Panchayati Raj Act.

This act was introduced in the year 1993 on 24th April. Panchayat means “assembly of five

(panch) wise persons.” This act has been applicable in all states leaving Delhi, Mizoram,

Nagaland and Meghalaya. Art 243(d) states about Panchayats. Local self government at the

village level was the brain child of the Father of the Nation, Mahatma Gandhiji. He always

desired that the Gram should be swaraj in nature. They should be efficient and capable to fulfil

their needs by themselves without being dependant on anybody. This would reduce the delay in

the work in the lower level. Hence, if the base is strong only then would the foundations be

strong. A country cannot develop only by improving the urban localities, as development has to

take place in totality especially in a country like India, where the majority of the population stays

in the rural areas. 1

Initially the Panchayati Raj Institutions didn’t function properly; they were unorganised

and inefficient in performing their work. This Act streamlined the working of the Panchayati Raj

Institutions and got back the essence of the Panchayats. The 73rd

amendment was really helpful

to regularise the working of the Panchayati Raj Institutions. A committee was constituted under

Sri Balwantrai Mehta in 1956 to look into the problems of Panchayati Raj. This committee

introduced the three-tier system. This system works on three levels and consists of a Gram which

means village or more than a village, commonly known as Village-level Panchayats, Janpad

which means taluka or a block, generally called Block-level Panchayats and Zilla which includes

district as is known as District-level Panchayats. The main objective behind the formation of this

system was to bring active participation amongst the people so that the rural areas could be

reconstructed.

The Panchayats elections were regularly held in every five years. Seats were reserved for

three categories; SC, ST and women. This act involved a huge number of people across the

country. The Panchayati Raj system was incorporated in the constitution of 2,32,278 villages

with 29.2 lakh representatives. These representatives were elected. The elected Panchayat would

1 Relevance of Gandhian Ideas for Human Rights and Empowerment of Women, Dr. (Mrs.) Bina Kumari Sarma,

Orissa Review, October 2009, available at: http://odisha.gov.in/e-

magazine/Orissareview/2009/October/engpdf/october-2009.pdf



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run a school, a dispensary, and a cultural centre and look after sanitation and drinking water and

agricultural colleges. To make the above stated views successful, Article 40 was incorporated in

the Constitution. According to this article, each State Government should take steps to organize

Village Panchayats and endow them with such powers and authority as may be necessary to

enable them to work as units of Local Self-Government.

The Panchayati Raj System got extended further when the Panchayats (Extension to the

Scheduled Areas) Act was introduced on 24th

December, 1996. This Act introduced the

Panchayati Raj system in the tribal area of nine states: Orissa, Andhra Pradesh, Maharashtra,

Chhattisgarh, Jharkhand, Gujarat, Himachal Pradesh, Madhya Pradesh, and Rajasthan. The

Government of India in the year 1952 made the first systematic effort to develop the rural areas

through Community Development Program under the first Five Year Plan.

Initially, the Panchayati Raj system did not fetch satisfactory result. The state

governments were not organised in the financial and administrative matters hence the

Panchayats faced problems in generating revenues. Inadequate fund is one of the major

drawbacks in the proper functioning of the system. People were not too comfortable to

participate freely in the Gram Sabhas. The three-tier system could not work properly in mutual

correlation as it was always assumed to be subordinate in nature. This system was always

considered as the fundamental structure but it created the problem of dominance.

The Ashoka Mehta Committee was constituted in the year 1977 to look into the flaws in

the working of the Panchayati Raj. This committee stated that the Panchayati Raj institutions had

failed in their purpose and therefore, it would be wise for them if they incorporated a two tier

system like Zilla Parishads and village Panchayats. It was also suggested that for the posts of

Presidents and Chairmen of Zilla Parishads, there should be district election. The G.V.K Rao

Committee was subsequently set up in 1985. This Committee was appointed to once again look

at the various aspects of PRI’s. This committee recommended that the PRI should provide all the

facilities and support to the people so that they can get the maximum benefit out of these

institutions. It also stated that all the PRI’s at the district level and below should be assigned with

the work of planning, implementation and monitoring. Furthermore, in 1986, another

Committee, namely the L.M Singhvi Committee was constituted. This Committee stated that the



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local self government should be constitutionally recognized, protected and preserved by the

inclusion of the new chapter in the Constitution. Secondly, it restricted the involvement of the

political parties in the process of Panchayati elections. The Panchayat system was revived 1983

onwards.

The main philosophy behind the creation of the Panchayati Raj Institution was to ensure

that there is maximum participation of the people from the rural region in the management of

their own affairs. There has to be mass participation at the all the levels of our political and

administrative system. The creation of the Panchayati Raj system empowered the local

communities. Through this, the main goal of the Constitution of India to demonstrate the power

of democracy is achieved. Democracy is termed as an important constituent for the development

of a Sate.

This act gave the opportunity to recognise the administration at the district and lower

levels. Panchayati Raj system was connected with both the levels in participating at the

programmes and administrative functions. These functions failed in carrying out the

responsibilities as there wasn’t any agency at the legal level which would assume its

responsibility. The concept of accountability was completely missing and hence, nobody took

the responsibility seriously and a gap was created in fulfilling the functions. Necessary

leadership was missing which was highly required for proper implementation of the

development programmes.

The administrative functions of the authorities are as follows:-

• It includes looking after the village sanitation,

• Proper construction and maintenance of the bridges,

• Standard number of wells and ponds are to be constructed,

• Implementing proper measures which would lead to improvement in the health,

• Rapid preventive and curative measures should be taken during epidemics,

• Proper maintenance of village schools,

• Advanced techniques should be introduced so that there can be improvement of

agriculture and cottage industries etc.



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The main source of income of the Panchayat Samiti are annual grants by the state

government, so if there is problem for the government to become organised and arrange the

necessary funds of these agencies, then automatically these bodies would not be able to perform

at their best. Other than funds from State Government, the other sources to generate revenue are

donations and contributions from the Panchayat Samiti.

To prevent the delay in the functioning of the agencies a new concept called Nyaya

Panchayat was established. These panchayats are known as the judicial panchayat. The ultimate

objective of this body is to provide a speedy and inexpensive system of justice to the villagers.

There are some states who have accepted the concept of Nyaya Panchayat. These Naya

Panchayats are known as the judicial Panchayats. These Panchayats are brought with the

objective of bringing a speedy and inexpensive system of justice to the villagers. These Naya

Panchayats vary from state to state. These Panchayats have the right to adjudicate petty civil

suits which are related to movable property. They can also adjudicate minor offences for which

fine can be given.

Just after the 73rd

amendment it led to the political decentralisation of all the states. As a

consequence, both the fiscal and functional decentralisation processes were mixed. There were

states who had taken steps to devolve funds, functions of the PRIs. States like Kerela, Madhya

Pradesh and Uttar Pradesh were not that experienced about Decentralisation but made the

maximum fundamental changes in this regard. State Finance Commissions had submitted their

recommendations but hardly any Sates had taken steps to ensure fiscal viability of the PRIs.

The Panchayati Raj System is indeed an excellent proposal and it would lead to the

development of the country to a great extent. If a suitable review is carried out and some

fundamental changes brought about, then it would lead to an overall development of the system

and ensure a better functioning.



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RECOMMENDATIONS

• There should be adequate powers and resources provided to these bodies.

• There should be more of local participation; only then the new set-up would work better

than before.

• Power should not be centralised and the local politics should be kept away from this

institution as far as possible so that there can be a better progress of this structure.

• All the State Governments should adopt a uniform policy in conducting elections to

Panchayati Raj intuitions regularly. The elections should not be haphazard in nature and

it should take place at a regular basis.

• The institutions lack adequate financial resources and hence could not achieve much in

their plans of development. Accordingly, there is a need to address this concern.

• The membership of these institutions should not be confined to the landlords, the upper

caste people and some affluent members of the villages. The poor and other needy

groups should get equal rights to be represented in this institution.

• The bureaucratic attitude towards the Panchayati raj institution at different levels of

management and co-ordination should change so that the best usage of them can be

achieved.

• The villagers who are illiterate and lack political consciousness should be educated and

proper measures like, training and seminars should be introduced.

• The functioning of the Gram Sabha should be strengthened so that it can be of great help

for any further development.

• There should be separate reservations policy for the women as they are still neglected in

the rural area. The view of the women is also necessary.

• The NGOs should be allowed to participate in the Panchayati Raj system so that there

can be a better development of the rural sector.

• Regular training programmes should be held.



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Documents

COMPILATION OF JUDICIAL PRONOUNCEMENTS ON