WP(C)/17/2011 of M.B Thatal and Another Vs State Of Sikkim and Ano. on 13 September 2011

JUDGMENT

Wanadi, ACJ.

This Petition has been filed under Article 226 of theConstitution of India praying for a writ of mandamus or anyother appropriate writ, order or direction of the like nature toquash the impugned Notification No.20/RM&DD/P dated 22-03-2011, Annexure P-10, by which the Petitioners have beenremoved from their Offices as Sabhapati and Sachivarespectively of 13-Gyalshing Omchung Gram Panchayat, WestDistrict, under sub-Section (1) of Section 113 of the SikkimPanchayat Act, 1993, (in short the ``Act'') and Notice issuedvide Memo No.345/ADC/(D)/W dated 06-04-2011, AnnexureP-12 (collectively), calling for election to fill the resultant vacancies of the Sabhapati and the Sachiva, 13-GyalshingOmchung Gram Panchayat on 20-04-2011 under Sections 28and 33 of the Act. The Petitioners are Members of 13-Gyalshing Omchung Gram Panchayat and held the posts ofSabhapati and Sachiva respectively having been elected in thePanchayat Election held in the year 2007.

2(aJ. It is stated that on 01-10-2008, the Petitionerswere approached by one Mr. J. 8. Sikdel of Kyongsa,Gyalshing, West Sikkim, aggrieved by the District Collector,the Respondent No.2, having issued to him a Notice undersub-Section (1) of Section 6 of the Sikkim Public Premises(Eviction of Unauthorised Occupants and Rent Recovery) Act,1980, vide Memo No.787/DC(W) dated 01-10-2008, which isAnnexure P-1 to the Writ Petition, directing removal ordisposal of his building by public auction and requesting thePetitioners to intervene in the matter as electedrepresentatives of the area.

fbJ. In response to the request, the Petitioners asresponsible elected representatives, wrote a letter dated 05-11-2008, Annexure P-2, requesting the District Collector,Respondent No.2, to consider the grievance of the said Mr, J.8. Sikdel and to take necessary steps regarding the ongoingconstructions that had caused severe damage to his property.In the letter dated 05-11-2008, the District Collector was further requested to refer to the inspection report of landslideat Kyongsa dated 25-07-2008 and the report on the cause ofslope failure submitted by the Senior Geologist, Mines,Minerals and Geology Department, Government of Sikkim,dated 01-08-2008, Annexure P-3 (collectively), in response toa requisition made by the Additional District Collector, West.

(cJ. As a consequence of the petitioners having writtenletter dated 05-11-2008, Annexure P-2 to the DistrictCollector under their joint signatures which had beenmistakenly styled as ``Notice" due to their ignorance, a showcause notice under Section 113 of the Act was issued by theDistrict Collector, West, Respondent No.2, vide MemoNo.333/DC(W) dated 07-11-2008, Annexure P-4 (collectively)to the Petitioners directing them to show cause as to whythey should not be removed from the Office of the PanchayatSabhapati and Panchayat Sachiva respectively for abusing thepowers vested in them. This was followed by another showcause notice vide Memo No.335/DC(W) dated 07-11-2008,Annexure P-5 (collectively) issued by the District Collectordirecting them to show cause as to why criminal case shouldnot be instituted against the Petitioners under appropriateprovisions of the Indian Penal Code for causing obstruction ofperformance of legal duties by a Government servant,namely, Mr. Zigmee Bhutia, DPO/DRM, West who was deputed to dismantle and remove the aforesaid building on06-11-2008. This notice was issued under Section 51(a) &(b) of the Disaster Management Act, 2005.

(dj. The Petitioners by the letter No.79/13-Gyz-Omc/G.P.U dated 11-11-2008, Annexure P-6, replied to theaforesaid show cause notices expressing their regret for themistakes committed by them due to their ignorance. It isstated that they are semi-literate persons having read only upto Class VIII and Class XII respectively hailing from veryhumble background. It was further stated that the PetitionerNo.1 belongs to Scheduled Caste Community of Sikkim andhave been elected from a reserved seat and is the onlyelected Member from such Community in the 13-GyalshingOmchung Gram Panchayat. However, the Petitioners wereissued another show cause notice and, this time under sub-section (2) of Section 113 of the Act vide MemoNo.488/RM&DD/P dated 27-02-2010, Annexure P-7, by theRespondent No.3 who is the Prescribed Authority under theAct, directing them to explain on the complaint received fromthe District Collector, West, of them having grossly abusedthe powers vested in them and having over-stepped theirauthority as a responsible elected representatives of thePanchayat. It is stated that the Petitioners submitted theirreplies to the show cause notice vide their letters dated 12- 03-2011 respectively, Annexure P-8 (collectively) to thePrescribed Authority, Respondent No.3, stating that they hadacted in good faith as elected representatives in response tothe complaint of a aggrieved person of their area and alsoexpressed their regrets for having referred to their letterwritten to the District Collector as ``Notice'' which was onaccount of their ignorance. In response to this reply, thePetitioners received another show cause notice from thePrescribed Authority, Respondent No.3, dated 20-05-2010,Annexure P-9 informing them that the explanation given bythem in their letter Annexure P-8 was not conclusive enoughand, therefore, requested for the presence of the Petitionersin person in the Office of the Respondent No.3 on 07-06-2010at 11 a.in. failing which it was stated that decision would betaken against him ex' parfe.

feJ. After the proceedings that was held on 07-06-2010in pursuance of the Notice, Annexure P-9, the Secretary,Rural Management and Development Department, theRespondent No.1, on being dissatisfied with the explanationand their submissions, issued Notification No.20/RM&DD/Pdated 22-03-2011, Annexure P-10 removing the Petitionersfrom their respective Offices with immediate effect with thedirection that the resultant vacancy would be filled by electionand in accordance with Sections 28 and 33 of the Act. This

was followed by Notice vide Memo No.548/ADC/(D)(W)/ dated24-03-2011, Annexure P-11 (collectively) issued by theAdditional District Collector (Development), RuralManagement and Development Department, RespondentNo.4, declaring the removal of the Petitioners from theirrespective Offices with immediate effect and notifying theelection to elect Sabhapati and Sachiva, 13-GyalshingOmchung Gram Panchayat, West District on 01-04-2011, forwhich all members of the Gram Panchayat were directed to bepresent. It is stated that the Notification dated 22-03-2011,Annexure P-10 and Notice dated 06-04-2011, Annexure P-12(collectively) removing the Petitioners from the respectiveOffices are illegal having been issued in violation of the lawsand, therefore, liable to the quashed.

3. In the counter-affidavit filed on behalf of theRespondents, the sequence of events narrated by thePetitioners have not been disputed. The Respondents haveonly asserted that the Petitioners had abused their powersvested in them by forcibly obstructing a Government Officialfrom discharging his lawful duties, i.e., when Mr. ZigmeeBhutia, DPO/DRM, West deputed by the District Collector,West to dismantle and remove the building of Shri J. 8. Sikdelwhich had collapsed causing danger and inconvenience to thepublic and, while doing so they had used abusive language.

4`It is stated that the Petitioners were providedsufficient opportunities to defend themselves and thatnecessary show cause notices were issued to the Petitionersby the Respondents and, upon considerations of their repliesthe concerned authorities were not satisfied and concludedthat the Petitioners' action were inconsistent and in clearabuse of the powers vested in them and that they had over-stepped their authority. It was, therefore, decided that thePetitioners be removed from their Offices under Section 113of the Act. It is stated that the Respondents had compliedwith all the procedure established under the Act in removingthe Petitioners from their respective posts.sufficient opportunities to defend themselves and thatnecessary show cause notices were issued to the Petitionersby the Respondents and, upon considerations of their repliesthe concerned authorities were not satisfied and concludedthat the Petitioners' action were inconsistent and in clearabuse of the powers vested in them and that they had over-stepped their authority. It was, therefore, decided that thePetitioners be removed from their Offices under Section 113of the Act. It is stated that the Respondents had compliedwith all the procedure established under the Act in removingthe Petitioners from their respective posts.

5. I have given thoughtful consideration to the rivalcontentions placed by the learned counsels, the pleadings andthe available records. The Petitioners' case is appears to berestricted to the following questions only:-

(1) That the impugned Order sub-Section (1) ofSection 113 of the Act issued under NotificationNo.20/RM&DD/P dated 22-03-2011, Annexure P-10, by the Respondent No.1, is invalid as it hasbeen issued merely by an order of the Secretaryand not in the name of the Governor; andSection 113 of the Act issued under NotificationNo.20/RM&DD/P dated 22-03-2011, Annexure P-10, by the Respondent No.1, is invalid as it hasbeen issued merely by an order of the Secretaryand not in the name of the Governor; and

(2) That the decision to remove the Petitioners fromtheir respective posts of Sabhapati and Sachiva oftheir respective posts of Sabhapati and Sachiva of the Gram Panchayat was disproportionate to theomissions on the part of the Petitioners.

6.

6. During the course of the arguments, Mr. A. K.Upadhyaya, learned senior counsel urged a third contentionthat the Petitioners were protected under the immunity clauseprovided under Section 107 of the Act which is an exceptionunder sub-Section (1) of Section 113 thereof.

7faJ. The issue raised on behalf of the Petitioners aretaken up in ser/.a£/.in as under:- A,Contention No.1

(/.J I have carefully examined the impugnedNotification No.20/RM&DD/P dated 22-03-2011, Annexure P-10, and the Notice bearing Memo No.345/ADC/(D)/(W) dated06-04-2011, Annexure P-12 (collectively). Annexure P-10 onthe face of it clearly shows that it is issued "By Order" whichappears before the signature of the Secretary clearlysignifying that it has been issued with the approval of theGovernment. Sub-Section (1) of Section 113 of the Act vestsin the State Government with the power to remove anySabhapati or Up-Sabhapati and Sachiva of Gram Panchayat,etc., from his office. Clause (in) of sub-Section (1) of Section2 of the Act defines - ``State Government" to mean theGovernment of the State of Sikkim. Therefore, the impugned Notification cannot be said to have been issued withoutauthority.

f/-/.J The other Notification impugned in the writ petitionbeing Annexure P-12 (collectively) which simply reiterates thefact that the Petitioners have been removed from theirrespective posts of Sabhapati and Sachiva which my view isquite superfluous and redundant in view of the previousNotification Annexure P-10. Its relevance is only the extentthat it calls for a meeting of the Gram Panchayat invoking theprovision of Sections 28 and 33 of the Act for election of theSabhapati and Sachiva. Upon perusal of Sections 28 and 33of the Act, there is nothing to indicate that the NotificationAnnexure P-12 (collectively) have beenoissued unauthorisedly.Except for the vague averment and submission that theNotification is unauthorized having not been issued by theState Government no material has been placed in support ofsuch contention. For convenience, I may reproduce therelevant provisions of the Act below:- Section 17/1`

"17. (1) Every Gram Panchayat shall, at' itsfirst meeting at which a quorum is present, elect oneof its members to be the Sabhapati and anothermember to be the Up-Sabhapati of the GramPanchayat in such manner as may be prescribed.

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Section 28

"28. (1) In the event of removal of aSabhapati or an Up-Sabhapati under section 27 or when a vacancy occurs in the office of a Sabhapati oran Up-Sabhapati by resignation, death or otherwise,the Gram Panchayat shall elect another Sabhapati orUp-Sabhapati and the person so elected shall takeoffice forthwith and shall hold such office for theunexpired term of office of his predecessor.

(2) No person who has been removedfrom office under section 27 shall be eligible for re-election to the vacancy so caused."

Section 33

"33. (1) A Sachiva may, at any time, beremoved from office by a resolution of the GramPanchayat carried by the majority of the members ofthe Gram Panchayat present at a meeting speciallyconvened for the purpose. Notice of such meetingshall be given to the prescribed authority.

(2) In the event of removal of aSachiva under sub-section (1) or when a vacaneyoccurs in the office of a Sachiva by resignation, deathor otherwise, the Gram Panchayat shall elect one ofits members to be the Sachiva and the person soelected shall take office forthwith and shall hold suchoffice for the un-expired term of office of hispredecessor.

(3) No person who has been removedfrom his office under sub-section (1) shall be eligiblefor re-election to the vacaney so caused."

Section 107_

"107. No suit or other legal proceedingsshall lie against a Gram Panchayat or Zilla Panchayator against any member thereof or any officer or anyemployee for anything in good faith done or intendedto be done in pursuance of this Act or any rules madethereunder."

Section 113

"113.(1) The State Government may,notwithstanding anything contained in sub-section (2)of section 17; sub-section (4) of section 31 and sub-section (2) of section 54, by an order in writingremove with effect from a date to be specified in theorder any Sabhapati or Up-Sabhapati or any Sachivaof Gram Panchayat, any Adhakshaya or Up-Adhakshya or Zilla Panchayat from his office, if in itsopinion, he wilfully omits or refused to carry out theprovisions of this Act or of any rules or orders madethereunder or abuses the powers vested in him underthis Act.

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.(2) The State Government shall,before making any order under sub-section (1), giveto the person concerned an opportunity of making arepresentation against the proposed order."

f/-/-/.) From the above, it can be seen that all vacanciesoccurring in the Office of the Sabhapati and Sachiva arerequired to be filled up immediately by election to beconducted by the Gram Panchayat. The removal of thePetitioners being under Section 113(1) of the Act, theconsequence provided under Sections 28 and 33 of the Actwould naturally apply. The procedure for election asprescribed under Section 17(1) of the Act, therefore, wouldhave to be followed. Therefore, it follows that the election ofthe Sabhapati and Sachiva or other office bearers of the GramPanchayat would have to be held in a meeting of a GramPanchayat.

f/.vJ Therefore, the action in issuing the impugnedNotification, Annexure P-12 (collectively) appear to be inconsonance with the provisions of the Act and, therefore,valid in law. The contention, therefore, stands re].ected.

(cJ Contention No.2

f;J It is seen from the provisions extracted above thatthe power to remove a Sabhapati and Sachiva or any otheroffice bearer of a Gram Panchayat is vested in the State

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Government and, such power may be exercised by the StateGovernment if in its opinion anyone of the office bearerswilfully omits or refuses to carry out the provisions of the Actor of any rules or orders made thereunder or ``abuses thepowers vested in him under this Act''. The Act does notdefine as to what would amount to abuse of powers under theAct. The Legislature appears to have left it upon the StateGovernment to decide on that in exercise of its discretion. Inthe present case, the action of the Petitioners in causingobstruction to a public servant in exercising his legitimateduties has been construed as abuse of powers by thePetitioners in the capacity of Sabhapati and Sachiva.

f/./.J This court in a proceeding under Article 226 of theConstitution of India is not sitting as a Court of Appeal againstthe decision of statutory authorities but, is only confined toexamine as to whether such statutory authorities have actedwithout I.urisdiction or has exercised its powers arbitrarily,that is, in violation of the laid down procedure and theprinciple of natural ].ustice, or in violation of any Law or theConstitution. Upon examination of the entire records, therespective pleadings of the parties, their submissions at thebar and the Acts and Rules, the Respondents do not appear tohave exercised their powers either in excess or withoutjurisdiction, The procedure prescribed under the Act and the Rules appear to have been complied with by issuing thenecessary show cause notices and also giving personalhearing to the Petitioners before arriving at the impugneddecisions. This Court is not concerned with the decisionstaken by the authorities prescribed under the Act but onlywith the decision-making process. From what have beendiscussed, the decision-making process appear to have beenfollowed as prescribed under the law and, therefore, it wouldnot be permissible for this Court to interfere with theimpugned decisions.

Therefore, the second contention also stands rejected.

/dJ _Contention No.3

ffJ The third contention raised on behalf of thePetitioners during the course of the arguments appear to beclearly mis-construed. Section 107 is a provision whichprotects the Gram Panchayat or any office bearers oremployees for actions taken legitimately under the Act. Thisprovision is an omnibus one and, quite obviously an anti-thesis to Section 113(1) authorizing the State Government toremove such persons in the event of omissions andcommissions on their part. This being clear from the plainreading of the provisions, the contention stands rejectedaccordingly.

8. In view of the above, I do not find anything for thisCourt to interfere with the impugned decisions.

g(aj. In the result, the writ petition stands dismissed.

fbj. No order as to costs.

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