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Narmadaben V. Parmar v. Taluka Development Officer, Kheralu & Ors.

Gujarat High Court

Oct 15, 1997

Judgment

Subsequent
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Factual and Procedural Background

This petition under Article 226 of the Constitution concerns whether the Chairman of the Social Justice Committee of the Taluka Panchayat, who was elected by the Committee members from amongst themselves, can be removed by those members by passing a motion of "no-confidence".

The petitioner was an elected member of the Kheralu Taluka Panchayat and, on January 18, 1996, was elected Chairman of the five-member Social Justice Committee. On April 19, 1997, the other four members moved a motion of no-confidence. The Taluka Development Officer (Secretary of the Panchayat) informed the petitioner on April 19, 1997, and forwarded the motion; the communication indicated that if the petitioner did not convene a Committee meeting within 15 days, the meeting would be convened by the Taluka Development Officer or the District Development Officer. The petitioner filed the present petition on April 30, 1997 seeking quashment of that communication and declarations that the notice and the motion of no-confidence were without jurisdiction and beyond the scope of the Gujarat Panchayats Act, 1993.

The petition sought (a) quashing and setting aside the communication from the Taluka Development Officer and (b) declarations that the notice and motion of no-confidence were without jurisdiction under the Act.

Legal Issues Presented

Whether the Chairman of the Social Justice Committee, elected by the members from amongst themselves, can be removed by those members by passing a motion of no-confidence.
Whether, in the absence of an express statutory provision for removal of a Committee Chairman, the appointing/electing body has an inherent or implied power to remove the Chairman (including the applicability of Section 16 of the General Clauses Act and related authorities).

Arguments of the Parties

Petitioner's Arguments (Mr. Tushar Mehta)

There is no provision in Section 123 or any other provision of the Gujarat Panchayats Act, 1993 that provides for removal of the Chairman of the Social Justice Committee; the Committee's term is co-extensive with the Panchayat, hence the Chairman cannot be removed until the Panchayat's term expires (here on July 13, 2000).
Where the legislature intends to confer removal by a motion of no-confidence, it has done so expressly (examples: Section 70 for President/Vice-President of Taluka Panchayat; Section 71 removal on grounds of misconduct after inquiry; Section 56 for Sarpanch/Upsarpanch; Section 84 for District Panchayat President/Vice-President) — thus absence of a specific provision indicates no such power exists for Committee Chairmen.
Reliance on Hindurao Balwant Patil & Anr. v. Krishnarao Parshuram Patil & Ors.: the right to contest, set aside elections or recall is not a common law right and must be conferred by statute; accordingly, members cannot indirectly do by vote what statute does not permit; power to recall is not inherent in the electorate. Similar view cited from N. Venkaia Narayan (ILR 1975 AP 242).

Respondent's Arguments (Mr. P.K. Jani, for the Taluka Development Officer)

As a basic tenet of democracy, the body that elects its Chairman or Vice-Chairman has the inherent power to remove them by a vote of no-confidence; this is an inherent and implied power that need not be specially conferred by statute.
The statutory provisions in Sections 56, 70 and 84 (which prescribe a two-thirds majority for no-confidence motions in specified offices) are special statutory modes of removal; the existence of such special provisions shows that, unless a special procedure is prescribed, the default democratic principle permits removal by simple majority.
Reliance on Chimanbhai R. Patel v. Anand Municipality and Ors. (1983) where it was held that even absent a specific statutory power, the appointing authority (municipality) can remove the Chairman of a Committee (especially if abusing power) and that the Chairman's office is distinct from general membership — supporting the view that removal by the electing body is permissible.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hindurao Balwant Patil & Anr. v. Krishnarao Parshuram Patil & Ors. (Bombay High Court)	Held that rights to contest, recall or set aside elections are not common law rights and must be conferred by statute; power to recall is not inherent in the electorate.	The Court considered this authority but distinguished it because it arose in the context of co-operative societies and relied on premises not fully applicable to Panchayats; the Court did not accept this authority as binding for the present case and declined to follow its broader reasoning.
N. Venkaia Narayan v. District Depun Collector (ILR 1975 AP 242)	Support for the proposition that power to recall is not inherent and must be statutory.	Cited by petitioner as supporting authority; the Court noted the similarity but relied instead on other authorities for its conclusion.
Chimanbhai R. Patel v. Anand Municipality and Ors. (1983 (1) XXIV (l) GLR 67)	Held that even if the statute lacks a specific removal provision, the appointing authority (Municipality) can remove the Chairman of a Committee (e.g., for abuse of power); the office of Chairman is distinct from membership.	The Court regarded itself as bound by this Division Bench decision, followed its principle that the appointing/electing body can remove a Committee Chairman, and applied the reasoning to the Social Justice Committee Chairman.
Haji Anwar Ahmed Khan v. The Punjab Wakf Board and Ors. (Punjab & Haryana High Court)	Support for the view that office-bearers elected by a body by simple majority can be removed at the pleasure of that body.	Relied upon by the Court as supportive authority for the proposition that office-bearers are accountable to the body electing them and can be removed by that body.
N. Venkataratnam Naidu v. The District Collector, Nellore and Ors. (Andhra Pradesh High Court, single judge)	Supportive view that office-bearers elected by the body may be removable by the body.	Referred to by the Court as an authority aligning with the view that office-bearers are removable by the body that elected them.
Bar Council of Delhi v. The Bar Council of India (Delhi High Court, Division Bench)	Support for the view that office-bearers elected by simple majority can be removed by the electing body; addresses accountability to the electing body.	Referred to as an authority consistent with the conclusion that office-bearers are responsible to and removable by the body which elected them.

Court's Reasoning and Analysis

The Court began by identifying the textual and structural features of the Gujarat Panchayats Act, 1993 relevant to the Social Justice Committee:

Section 123 (Social Justice Committee) establishes the Committee and its functions; Section 123(3) caps membership at five and Section 123(9)(b) makes the Committee's term co-extensive with the Panchayat's duration (five years).
Section 123(6) provides that Committee members shall elect from amongst themselves the Chairman; however, the Act does not specify any fixed term for the office of the Chairman of a Committee.

From these statutory features the Court reasoned:

Absence of an express fixed term for the Chairman: While the Committee's membership has a statutory term co-extensive with the Panchayat, the Act does not give a fixed term to the Chairman. If the legislature intended to confer a fixed term on the Chairman, it would have done so expressly.
Distinction between offices: The office of Chairman of a Committee is separate and distinct from membership of the Committee or Panchayat; a no-confidence motion concerns the holding of the post of Chairman and not membership.
Democratic principle and accountability: It is a basic tenet of democracy that an elected body must be able to hold its office-bearers accountable. If the body that elects an office-bearer did not have the power to remove that officer (by at least a simple majority), the body could be rendered ineffective—for example, a small minority in a small Committee could immobilize the Committee by keeping an office-bearer in place despite loss of confidence.
Special statutory provisions as exceptions: The Court observed that where the legislature intends a special mode of removal (e.g., two-thirds majority), it has provided so (Sections 56, 70, 84). The existence of these special provisions indicates that, absent such a prescription, removal by a simple majority is the default democratic norm.
Applicability of Section 16, General Clauses Act: The Court accepted the applicability of Section 16 (that power to appoint includes power to remove) to elected office-bearers, reasoning that "appointment" can occur by different modes, including election; hence Section 16 can be invoked for elected office-bearers who are office-holders distinct from membership.
Precedential support and distinction: The Court treated Chimanbhai R. Patel (Division Bench) as directly persuasive and binding on the point that appointing authorities can remove Committee Chairmen; it distinguished Hindurao (Bombay) on the ground that that decision arose in the context of co-operative societies and relied on premises (e.g., absence of local-government disqualifications, separateness from party politics) not applicable to Panchayats. The Court also cited other authorities (Punjab & Haryana, Andhra Pradesh, Delhi) that supported the view that office-bearers elected by simple majority are removable by the electing body.

On the facts, the Court noted that four of five members had passed a motion of no-confidence; applying the above principles, the Court concluded that the Committee members had the inherent or implied power to remove their Chairman by a motion of no-confidence passed by a simple majority unless a statute prescribes a different procedure.

Holding and Implications

Holding: The petition is dismissed. The Court held that the body which elects the Chairman of the Social Justice Committee has the inherent or implied power to remove the Chairman by passing a motion of no-confidence by a simple majority, unless there is a specific statutory provision prescribing a different procedure or fixed term. The ad-interim stay previously granted was vacated, but the Court continued the ad-interim relief until October 24, 1997, at the petitioner's request.

Implications

Direct effect on the parties: The petition seeking to quash the communication and to declare the motion of no-confidence beyond jurisdiction was dismissed; the no-confidence mechanism employed by the Committee members was held not to be without jurisdiction. The earlier ad-interim relief was vacated but extended temporarily until October 24, 1997.
Broader consequence stated by the Court: Unless the legislature prescribes a special mode of removal (for example a statutory two-thirds requirement), the default democratic principle recognized by the Court permits the electing body to remove its office-bearers (such as Committee Chairmen) by a simple majority vote of no-confidence. The Court followed existing Division Bench authority (Chimanbhai R. Patel) and other supporting decisions in reaching this conclusion.
On precedent: The Court distinguished contrary authority (Hindurao) on its facts and context and relied on earlier authorities that support the inherent power doctrine for office-bearers of local bodies.

Show all summary ...

1. This petition under Article 226 of the Constitution raises an interesting and neat question of law whether the Chairman of the Social Justice Committee of the Taluka Panchayat (hereinafter referred to as the Committee) elected by the members of the said Committee from amongst themselves can be removed by its members by passing a motion of "no-confidence".

2. The petitioner is an elected member of Kheralu Taluka Panchayat-respondent No. 2 herein. In her capacity as a member of Taluka Panchayat the petitioner was elected as a member of the Social Justice Committee of the Taluka Panchayat. The Committee has five members and from amongst the members of the Committee the petitioner was elected as the Chairman of the said Committee on January 18. 1996. Thereafter on April 19, 1997, the remaining four members of the Committee moved a motion of no-confidence and therefore, the Taluka Development Officer, who is the Secretary of the Panchayat, informed the petitioner that the motion of no-confidence was received on April 19, 1997 and it was also forwarded to the petitioner on the same day. Hence, if the petitioner did not convene a meeting of the Social Justice Committee within 15 days, the meeting will be convened by the Taluka Development Officer or the District Development Officer. In view of the said communication dated April 28, 1997 the petitioner filed the present petition on April 30, 1997.

3. The petition is filed for quashing and setting aside the said communication and for a declaration that the said notice was without jurisdiction and beyond the scope of provisions of the Gujarat Panchayats Act, 1993 (hereinafter referred to as the Act) and also for a declaration that the motion of no-confidence against the petitioner was without jurisdiction and beyond the scope of provisions of the Act.

4. Before narrating the submission of the learned Counsel for the parties it will be useful to refer to the statutory provisions regarding the Social Justice Committee of the Taluka Panchayat. It is constituted under the provisions of Section 123 of the Act for performing such functions as are considered essential for securing social justice to the weaker sections of the society including persons belonging to the Scheduled Castes and the Scheduled Tribes as may be prescribed. Sub-section (3) of Section 129 provides that the Committee shall not consist of more than five members. Sub-section (9)(b) provides that the term of the Social Justice Committee shall be coextensive with the duration of the Panchayat. The constitution of the Social Justice Committee shall be such as may be provided subject to the provisions of Sub-section (3). Sub-section (5) provides that the members of the Committee shall be elected by the Panchayat from amongst its members. Sub-section (6) and Sub-section (9) are strongly pressed into service by the learned Counsel for the petitioner and the same are quoted here under:

(6) Where any Committee is constituted under this section, the members of the Committee shall elect from amongst themselves the Chairman of the Committee:

Provided that-

(a) where the President and Vice-President both are members of any such Committee, the President shall be the ex-officio Chairman of such Committee and if he declines to hold the office, the Vice President shall be the ex-officio Chairman of the Committee, unless he also declines to hold the office,

(b) where only one of them is a member thereof he shall be the ex-officio Chairman of the Committee, unless he declines to hold the office and

Sub-section (9) provides as under:

(9)(a) The term of each of the Committees other than the Executive Committee and the Social Justice Committees shall be for such period not exceeding one year as may be determined by the Panchayat.

(b) The term of the Executive Committee shall be two years and on expiry of its term, the Committee shall be reconstituted and the term of the Social Justice Committee shall be co-extensive with the duration of the Panchayat;

...

(emphasis supplied)

5. Mr. Tushar Mehta, learned Counsel for the petitioner has made the following contentions:

(I) There is no provision in the aforesaid Section 123 or any other provision of the Act providing for the removal of the Chairman of the Social Justice Committee. The term of the Committee is co-extensive with the duration of the Panchayat and therefore, once the petitioner is elected as the Chairman of the said Committee, she could not have been removed till the term of the Panchayat expires on July 13, 2000.

(II) Whenever the legislature intended to confer any such power of removal by passing a motion of no-confidence, the legislature has made a specific provision. For instance, Section 70 of the Act makes provision for passing a motion of no-confidence against the President or the Vice-President of the Taluka Panchayat. Section 71 of the Act confers power on the competent authority to remove from office any member of a Panchayat or any President or Vice-President thereof after giving him an opportunity of being heard and giving due notice in that behalf to the Panchayat and after holding inquiry, if such member, President or Vice-President has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuse of his power etc. Similarly the Act has made provision in Section 56 of the Act for passing of no-confidence motion against the Sarpanch or Upsarpanch of the Gram Panchayat. So also in respect of the District Panchayat, Section 84 contains the provision for removal of the President or Vice President by passing a motion of no-confidence.

(III) Reliance is placed on the judgment of a Division Bench of the Bombay High Court in the case of Hindurao Balwant Patil and Anr. v. Krishnarao Parshuram Patil and Ors. wherein according to the learned Counsel for the petitioner, it is held that the right to contest election and the right to move for setting aside an election or right to recall the person already elected are not common law rights. These rights must be conferred by the statute. The members of the Committee cannot be permitted to do indirectly what they are not permitted to do directly under any of the provisions of the Act or rules. Power to recall is not inherent in the electorate. Therefore, in the absence of such a power it was not open to the members of the Committee to remove the Chairman of the Committee by passing a mere vote of no confidence. Such powers cannot be exercised by taking recourse to or applying the doctrine of implied and inherent power or right to recall. Similar view is taken in N. Venkaia Narayan v. District Depun Collector ILR 1975 AP 242.

6. On the other hand Mr. P.K. Jani, learned Counsel for the Taluka Development Officer, Kheralu, has made the following submissions:

(i) As per the basic tenet of Democracy the body which elects its Chairman or Vice-Chairman also has the inherent power to remove them by merely passing a vote of no-confidence. Since each body has such inherent and implied power and right, it need not be conferred by any special statutory provision.

(ii) The provisions of Sees. 56, 70 and 84 of the Act providing for removal of Sarpanch/Upsarpanch of the Gram Panchayat, President/Vice-President of the Taluka Panchayat or the District Panchayat are special statutory provisions laying down a special mode of removal because there 2/3rd majority is prescribed for passing motion of noconfidence and therefore, such special statutory provisions are required if the legislature intends to prescribe a special norm or mode of removal.

(iii) Reliance is placed on the observations made by this Court in the case of Chimanbhai R. Patel v. Anand Municipality and Ors. 1983 (1) XXIV (l) GLR 67 wherein the view taken is that even if the statute does not confer specific power, the general rule will apply and the Municipality can remove the Chairman of a Committee if he abuses his power as the Chairman and that the office of the Chairman of a Committee is distinct and separate from the office of a Municipal Councillor.

7. I have heard the learned Counsel for the parties at length. It is true that the provisions of the Act do not specifically provide for removal of the Chairman of the Committee by passing a vote of no-confidence. However, it is required to be noted that the provisions of Section 123(9)(b) provide for the term of the Committee making it co-extensive with the duration of the Panchayat which is five years. However, no term is provided for the office of the Chairman of the Committee. There is, therefore, nothing in the provisions of Section 123 of the Act which gives any fixed term to the Chairman of the Committee although the members of the Committee get term co-extensive with the duration of the Panchayat. If the legislature intended to confer any such fixed term on the Chairman of the Committee the legislature would have clearly provided so.

8. It is also true that there are specific provisions for removal of the Sarpanch/Upsarpanch of the Gram Panchayat, President/Vice-President of taluka Panchayat under Sees. 56, 70 and 84 respectively but there is no such provision for Chairman of any Committee. But Mr. Jani has rightly pointed out that in all those provisions special provision is made requiring passing of no-confidence motion by 2/3rd majority and not by a simple majority. It is a basic tenet of democracy that an elected body has the power to elect its office-bearers and if the body is not held to have power to appoint or remove its office-bearers, the body will never be able to enforce accountability or responsibility of its office-bearers or control the action of its office bearers. For instance, if one looks to the constitution of the Social Justice Committee, it comprises of five members and if, as in the instant case, out of five members four members have no-confidence in the Chairman and if this situation is allowed to continue till expiry of the term of the Committee (which event will take place in July 2000. in the instant case), there will be constant dead-lock and the Committee will not be able to function effectively and carry out the duties assigned to it. It must, therefore, be held that the body which has power to elect its office-bearers by a simple majority has also the inherent or implied power to remove them by passing the motion of no-confidence by a simple majority, unless there are special provisions prescribing a special procedure or special requirement, such as the requirement for 2/3rd majority to remove the President/Vice-President of the Taluka Panchayat/District Panchayat.

9. Even the provisions of Section 16 of the General Clauses Act be relied upon for the purpose of buttressing the aforesaid conclusion that the power to appoint includes the power to remove. The submission of Mr. Mehta that the provisions of Section 16 of the General Clauses Act cannot be invoked in the instant case because herein the petitioner was not appointed but elected, has no substance. Appointment on a post or office can be made by various modes. Election is only one of the modes of appointment. Therefore, the provisions of section 16 can certainly be applied. There is one important point which is required to be noted here. That is in respect of the power conferred upon the people to elect their representatives to the legislature or the general body of the Panchayat, Municipality, etc. which is not to be confused with the power to appoint. The right to elect one's representative to a seat in the Legislature does not include the right to recall because the Constitution or the relevant statute provides for specific term for which the legislators/members/councillors are elected. As Edmand Burke has said, people's representatives in the Legislature are not their mere agents, but they are their delegates. The election to the seats in legislative bodies, therefore, stands on a different footing from the appointment of the office-bearers who are only agents of the particular body which elects them. Hence, the power to appoint, whether by election or otherwise, also includes the power to remove the appointees unless there are specific provisions to the contrary or unless the appointment for a specific term. A Division Bench of this Court in the case of Chimanbhai R. Patel (supra) has also held that even though the provisions of Gujarat Municipalities Act do not contain any specific provision for the removal of the Chairman of the Committee, the general rule that the appointing authority, namely, the Municipality can remove the Chairman of the Committee, if he abuses his power as the Chairman thereof, must apply. It is also held that the office of the Chairman of a Committee is distinct and separate from the office of a Municipal councillor. In the instant case also the post of Chairman of the Social Justice Committee is separate and distinct from the membership of the Committee and the membership of the Panchayat and therefore, the vote of no-confidence will obviously be concerned with the petitioner's holding the post of Chairman and not with the membership of the Committee or of the Taluka Panchayat.

10. As far as reliance placed by Mr. Mehta on the decision of the Bombay High Court in the case of Hindurao (supra) is concerned, it is true that prima facie the observations made in paragraphs 9, 10 and 18 of the said judgment support the case of the petitioner. However, it is required to be noted that the Division Bench of the Bombay High Court has noted that the decision was being rendered in respect of co-operative societies, it is also observed therein that the co-operative movement is a separate movement which need not be connected with many politics, it is also required to be noted here that the provision for Disqualification of Members of Local Authorities Act does not apply to the co-operative societies but it is applicable to the Local self-Government bodies such as Panchayats and Municipalities. Hence the underlying premise of the decision of the Bombay High Court that party politics has no place in co-operative societies is not applicable to Panchayat. Otherwise also I am not inclined to agree with the view taken by the Bombay High Court as I am bound by the decision of the Division Bench in the case of Chimanbhai Paiel (supra) and 1 also share the view taken by the Punjab & Haryana High Court in the case of Haji Anwar Ahmed Khan v. The Punjab Wakf Board and Ors. and by a learned single Judge of the Andhra Pradesh High Court in the case of N. Venkataratnam Naidu v. The District Collector, Nellore and Ors. and a Division Bench of the Delhi High Court in the case of Bar Council of Delhi v. The Bar Council of India where the view taken is that the office-bearers of the co-operative societies or Panchayat are elected by and responsible to the body which elects them by simple majority and, therefore, the necessary conclusion would be that they can be removed at the pleasure of the body so electing and that if this view is not taken it will result in having irrevocable office bearers and the office-bearers will not be responsible to the body electing them. In this connection it is required to be noted that even while holding that where there is no specific power given to the members of a Committee or Board of Directors to remove its office-bearers by passing a mere vote of no-confidence, the Division Bench of the Bombay High Court has made the following observations in Para 19 of the judgment:

However, before parting with this case, we might observe that this is a case wherein the meeting for passing the vote of no-confidence was already held and the resolution is also passed by the majority of the members of the Board. Thus, the petitioners very well knew that they no longer enjoy the confidence of the Board. In these circumstances, the petitioners should well consider whether they should resign from the posts. Moreso, in view of the well established conventions of public life as well as of the co-operative movement which is based on mutual trust.

(emphasis supplied) It is thus clear that the Bombay High Court has also acknowledged that reading implied power of the members of the Board of Directors to remove the office-bearers by passing a vote of no-confidence would certainly be consistent with the well established convention of public life. When two interpretations of statutory provisions are possible, one which accords with a well established convention of public life and the other which militates against the well established convention of public life, the Court must instinctively go for the former.

11. In view of the aforesaid discussion, there is no substance in any of the contentions urged on behalf of the petitioner. The petition, therefore, fails and is hereby dismissed. The ad-interim stay granted earlier stands vacated.

At this stage, Mr. Mehta, learned Counsel for the petitioner prays that the ad-interim relief granted earlier may be continued for some time to enable the petitioner to take further recourse in accordance with law. In the facts and circumstances of the case, the ad-interim relief granted earlier shall continue till October 24. 1997.