IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA 1. LPA No.135 of 2008 2. LPA No.137 of 2008. Judgment reserved on:18.12.2008. Date of decision: 24.2, 2009. 1. LPA No.135 of 2008 Dev Darshan Sharma & another …Appellants Vs. Yash Pal and others …Respondents ________________________________________________________________ 2. LPA No.137 of 2008 State of H.P. & Ors. …..Appellants Vs. Yash Pal and others. ….Respondents _____________________________________________________ Coram The Hon’ble Mr. Justice Jagdish Bhalla, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. B.C. Negi, Advocate, for the appellants in LPA No.135 of 2008 and for respondents in LPA No.137 of 2008. For the Respondents : Mr. Ajay Sharma, Advocate, for respondent No.1 in LPA No.135 of 2008 and R.K. Bawa, Advocate General, for the appellants in LPA No.137 of 2008 and for respondents No.2 to 4 in LPA No.135 of 2008 Kuldip Singh, Judge This judgement shall dispose of LPA Nos. 135 and 137 of 2008, both having arisen from judgment dated 29.10.2008 passed by learned Single Judge in CWP No.139 of 2008. In this judgment reference to the parties are given from LPA No.135 of 2008. Whether the reporters of the local papers may be allowed to see the Judgment? - 2 - 2. The facts in brief are that respondent No.1 had filed petition against proforma respondents No.1 to 3 for quashing annexure P-3 notice dated 22.1.2008, adjourning the meeting which was fixed on 23.1.2008, annexure P-4 letter dated 22.1.2008 of District Panchayat officer addressed to Director of Panchayati Raj, annexure P-5 letter dated 23.1.2008 clarification regarding no confidence motion, annexure P-6 notice dated 23.1.2008 fixing date 30.1.2008 for consideration of no confidence motion. The annexure P-7 is another copy of notice dated 23.1.2008 fixing the date of meeting on 30.1.2008 and addressed to respondent No.1. The no confidence motion was passed on 25.2.2008 removing respondent No.1 as Chairman of Panchayat Samiti, Nahan (for short Panchayat Samiti). The Chairman and Vice-chairman of Panchayat Samiti were elected on 11.3.2008, therefore, appellants were impleaded as parties in the writ petition and prayer was also made in the writ petition for quashing annexure P-8 order dated 25.2.2008 passed by Deputy Commissioner, District Sirmaur declaring office of Chairman Panchayat Samiti vacant and also for quashing annexure P-9 dated 11.3.2008 declaring appellants having been elected as Chairman and Vice-chairman respectively of Panchayat Samiti. 3. The further pleaded case of respondent No.1 was that he was elected Chairman, Panchayat Samiti in accordance with H.P. Panchayati Raj Act, 1994 ( for short Act) and H.P. Panchayati Raj (Election) Rules, 1994. The proforma respondents No.2,3 and appellants due to political interference had been unnecessarily harassing the respondent No.1. The proforma respondent No.3 vide - 3 - annexure P-2 dated 16.1.2008 had fixed the meeting of Panchayat Samiti on 23.1.2008 at 11 a.m. for considering no confidence motion against Chairman and Vice-chairman of Panchayat Samiti. The proforma respondent No.3 in terms of rules 128 ( C ) and 129 of H.P. Panchayati Raj ( General) Rules 1997 ( for short Rules) was required to convene a meeting within 15 days from the date of receipt of notice to bring resolution of no confidence motion. The proforma respondent No.3 on 22.1.2008 vide annexure P-3 issued another letter postponing the meeting till further orders due to registration of case against respondent No.1 for illegally confining Sunita Devi. The respondent No.1 has pleaded that in view of postponement of the meeting the motion stood defeated under rule 132. 4. The further case of respondent No.1 was that proforma respondent No.3 under rule 129 has independent quasi judicial powers but despite that proforma respondent No.3 vide communication dated 22.1.2008 annexure P-4 asked proforma respondent No.2 for guidelines, who issued guidelines/clarifications dated 23.1.2008 annexure P-5. This act of proforma respondent No.2 is nothing but interference in the working of proforma respondent No.3. 5. On 23.1.2008 vide annexure P-6 proforma respondent No.3 in contravention of rule 132 fixed meeting on 30.1.2008 at 11 a.m. for considering no confidence motion against Chairman and Vice-chairman of Panchayat Samiti. The rule 131 provides that authority shall issue notice not less then seven days before the appointed date of meeting, which according to respondent No.1 - 4 - means nothing but the notice must be received by the addressee in all eventuality seven days prior to the date fixed for meeting. The notice dated 23.1.2008 fixing the date of meeting on 30.1.2008 was received by respondent No.1 on 26.1.2008. In these circumstances notice annexure P-6 is bad in law. 6. On 25.2.2008 no confidence motion was carried out against respondent No.1 and on 11.3.2008 elections were held and new Chairman and Vice-chairman were elected vide annexure P-9. On those facts, respondent No.1 had filed petition for quashing annexures P-3 to P-6, P-8 and P-9. 7 The petition was contested by proforma respondents No.1 to 3 by filing reply. A preliminary submission was made in the reply that respondent No.1 had participated in the election to the office of Chairman of the Panchayat Samiti, he was defeated and therefore the petition was not maintainable. On merits it has been submitted that proforma respondent No.3 on 15.1.2008 had received a notice of intention to move a resolution of no confidence against Chairman and Vice-chairman of Panchayat Samiti, he issued notice on 16.1.2008 fixing the date of the meeting of Panchayat Samiti on 23.1.2008 to consider the motion of no confidence against Chairman and Vice-chairman of Panchayat Samiti. A report from SHO, Nahan was received on 21.1.2008 that the husband of Sunita Devi had lodged an FIR regarding confinement of Sunita Devi, member Panchayat Samiti, Nahan who had also signed and presented to proforma respondent No.3 the notice of intention for passing of no confidence motion against respondent No.1. In those circumstances, - 5 - proforma respondent No.3 cancelled the meeting dated 23.1.2008, but proforma respondent No.3 again convened the meeting of the Panchayat Samiti on 30.1.2008. The scheduled meeting of the Panchayat Samiti was cancelled and in those circumstances proforma respondent No.3 had requested proforma respondent No.2 vide letter dated 22.1.2008 annexure P-4 for clarification. The proforma respondent No.2 therefore issued clarification dated 23.1.2008 annexure P-5. The rule 131 does not provide that notice should be served before seven days. The name of the husband of Sunita Devi is Ramesh Chand and not Prem Singh as has been incorrectly mentioned in the notification of elected members of the Panchayat Samiti. The proforma respondents No.1 to 3 had prayed for dismissal of the writ petition. 8. The appellants also contested the petition by filing reply. They made preliminary submissions that respondent No.1 had participated in the process of election to the offices of Chairman and Vice-chairman of Panchayat Samiti. The respondent No.1 himself was a candidate for the office of Chairman and was defeated in the election held on 11.3.2008 in which appellant No.1 was elected as Chairman and appellant No.2 as Vice-chairman of Panchayat Samiti. In these circumstances, the petition is not maintainable. Sunita Devi was abducted and she could not attend the meeting for the purpose of no confidence. On merits they denied the case set up by respondent No.1 and prayed for dismissal of the wit petition. 9. The learned Single Judge has held that the meeting held on 25.2.2008 in absence of seven days clear notice was illegal - 6 - and the election held on 11.3.2008 was not valid and election of appellant as Chairman and Vice-chairman was set aside. It has also been held that the manner in which the proforma respondent No.3 had sought clarifications/guidelines from proforma respondent No.2 was contrary to letter and spirit of the rules. The proforma respondent No.3 had failed to exercise jurisdiction vested in him by writing letter dated 22.1.2008 to proforma respondent No.2. The petition was allowed and annexure P-8 dated 25.2.2008 and annexure P-9 dated 11.3.2008 were quashed and set aside. 10. We have heard Mr. B.C. Negi, learned counsel for the appellants in LPA No.135 of 2008, Mr. R.K. Bawa, learned Advocate General, for the appellants in LPA No.137 of 2008, Mr. Ajay Sharma learned counsel for respondent No.1 and gone through the record. Mr. B.C. Negi has submitted that seven days notice provided in rule 131 is not mandatory in view of proviso to sub-section 3, section 80 of the Act. In any case section 131 provides ‘issue of notice’ and not ‘giving’ or ‘service’ of notice, therefore, it is not mandatory that notice under rule 131 should be delivered or served to addressee before seven days of the date fixed for meeting. He has submitted that the judgments relied by learned Single Judge on seven days notice are distinguishable on facts and are not applicable. He has also submitted that respondent No.1 voluntarily participated in the election process for the office of Chairman and was defeated on 11.3.2008 and for this reason the petition filed by him was not maintainable. He has ultimately prayed for setting aside the impugned judgment. Mr. R.K. Bawa, learned Advocate General has additionally submitted - 7 - that petition was not maintainable in view of alternative remedy provided under section 148 of the Act. Mr. Ajay Sharma, learned counsel for respondent No.1 has supported the impugned judgment. 11. The learned Single Judge has noticed sequence of events in the impugned judgment and has observed that a fresh notice was issued by District Panchayat Officer on 16.2.2008 for convening the meeting on 25.2.2008. It has also been observed that the Court will concentrate only whether the meeting convened on 25.2.2008 was in conformity with sub rule (1) of rule 131 or not. The petition was filed by respondent No.1 on 28.1.2008 wherein prayer was made for quashing annexures P-3 to P-6. The notice dated 16.2.2008 was not in existence at the time of filing of the petition. On 28.1.2008, learned Single Judge had passed interim order that no meeting of Panchayat Samiti in terms of notice dated 23.1.2008 shall be held on 30.1.2008. On 15.2.2008 the learned Single Judge in modification of earlier order clarified that it was open for the authorities, including District Panchayat Officer to issue a fresh notice in accordance with law for convening the meeting, for the purpose which was the subject matter of the writ petition. On 22.2.2008 the learned Single Judge declined to pass interim order but ordered that the meeting may be held as scheduled, which shall be subject to the writ petition. On 7.3.2008 the writ petition was admitted. The respondent No.1 on 1.4.2008 filed application dated 25.3.2008 to amend the petition to the following effect:- “8A That now vide order dated 25.2.2008 “No Confidence Motion” stand carried out against the petitioner and qua the same orders stand passed, copy which is - 8 - annexed as Annexure P-8 and further on 11.3.2008 elections were held and new Chairman and Vice Chairman stand elected, copy of which is annexed as Annexure P-9. It is submitted that ground being given by respondents for adjourning the meeting on 22.1.2008 is that one Shri Ramesh, who is the husband of one Member Smt. Sunita , has filed complaint with SHO, Police Station, Nahan that said Member stand illegally detained. Firstly, Ramesh is not the husband of Smt. Sunita Devi as her husband is one Shri Prem Singh and the same is clear from proceedings dated 11.3.2008 and secondly, as sated in the rejoinder, she was detected on 24.1.2008 then how meeting again was fixed on 23.1.2008, this depicts malafides of the respondents inasmuch as that on 22.1.2008 when political bosses communicated and concluded that majority is not in their favour, meeting fixed for 23.1.2008 was ordered to be adjourned till further orders and again the same was fixed on 23.1.2008. There being no provision of adjournment of meeting, as such, subsequent Annexures in law are totally bad and are liable to be set aside.” The amendment was also sought in the relief clause to the following effect:- “quashing of the orders dated 25.2.2008 and 11.3.2008 ( Annexures P-8 and P-9)” 12. The amendment application was allowed on 3.4.2008. The appellants were impleaded as parties vide order dated 27.6.2008. On 16.9.2008 learned single judge formulated the following points:- (a) “Whether notice of seven days’ is to be reckoned from 16.2.2008 or from 21.2.2008 for the purpose of meeting convened on 25.2.2008; (b) The other ancillary issue required to be gone into is the manner in which the earlier meeting fixed on 23.2.2008 - 9 - (sic) was adjourned vis-à-vis Rule 132 of the H.P. Panchayati Raj General Rules, 1997”. The learned Single Judge ultimately decided the writ petition on 29.10.2008 as noticed above. 13. The earlier meeting which was fixed on 30.1.2008 in pursuance of notice dated 23.1.2008 annexure P-6 could not be held and was not held in view of interim order passed by learned Single Judge on 28.1.2008. The learned Single Judge on 15.2.2008 modified the earlier interim order and permitted the authorities to issue a fresh notice in accordance with law for convening the meeting. In these circumstances, the notice dated 23.1.2008 annexure P-6 is of academic interest only. The meeting of the Panchayat Samiti which was held on 25.2.2008 for considering the no confidence motion against appellants was convened on the basis of notice dated 16.2.2008. The respondent No.1 has not set up a case of prejudice in view of the shorter period of notice dated 16.2.2008 on the basis of which no confidence motion was passed against him on 25.2.2008. In Ravi S. Naik versus Union of India and others, 1994 Supp. (2) SCC 641, one of the contentions before the Supreme Court was that there has been violation of principles of natural justice inasmuch as in disregard of the provisions of Rule 7(3)(b) of the Goa Legislative Assembly (Disqualification on Grounds of Defection) Rules, 1986, Speaker of the State Legislative Assembly gave only two days instead of seven days time to file reply. The Supreme Court in Paragraphs-21 and 22 of the report has observed as follows:- “21. The approach of the English Courts has been thus summed up by Prof. Wade: - 10 - "The judges, anxious as always to preserve some freedom of manoeuvre, emphasise that 'it is not possible to lay down rigid rules as to when the principles of natural justice are to apply nor as to their scope and extent. Everything depends on the subject-matter. The so-called rules of natural justice are not engraved on tablets of stone. Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant there is no such thing as a merely technical infringement of natural justice." (H.W.R. Wade : Administrative Law, 6th Edn., p. 530) Similarly Clive Lewis has stated: "The fact that the applicant has suffered no prejudice as a result of the error complained of may be a reason for refusing him relief. It is necessary to keep in mind the purpose of the public law principle that has technically been violated, and ask whether that underlying purpose has in any event been achieved in the circumstances of the case. If so, the courts may decide that the breach has caused no injustice or prejudice and there is no need to grant relief. The courts may, for example, refuse relief if there has been a breach of natural justice but where the breach has in fact not prevented the individual from having a fair hearing." [Clive Lewis: Judicial Remedies in Public Law (1992) p. 290] In the words of Lord Wilber force: "A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which - 11 - has been lost by the failure. The court does not act in vain." [Malloch v. Aberdeen Corporation (1971) 2 All ER 1278 at p. 1294] 22. The approach of the Courts in India is no different. In A. M. Allison v. B. L Sen, 1957 SCR 359 : (AIR 1957 SC 227), it has been laid down that while exercising the jurisdiction under Article 226 of the Constitution the High Court has the power to refuse the writs if it was satisfied that there has been no failure of justice. In Paragraph-24, the Supreme Court has held as follows:- “24. It is no doubt true that under Rule 7(3)(b) of the Disqualification Rules, it has been provided that the members concerned can forward their comments in writing on the petitions within seven days of the receipt of the copies of the petition and the annexures thereto and in the instant case the appellants were given only two days time for submitting their replies. The appellants, however, did submit their replies to the petitions within the said period and the said replies were quite detailed. Having regard to the fact that there was no denial by the appellants of the allegation in paragraph 11 of the petitions about their having met the Governor on December 10, 1990 in the company of Dr. Barbosa and Dr. Wilfred D'Souza and other Congress (I) MLAs and the only dispute was whether from the said conduct of the appellants an inference could be drawn that the appellants had voluntarily given up their leadership (sic. Membership) of the MGP, it cannot be said that the insufficient time given for submitting the reply has resulted in denial of adequate opportunity to the appellants to controvert the allegations contained in the petitions seeking disqualification of the appellants.” 14. The respondent No.1 in the amended writ petition has not assailed the illegality of notice dated 16.2.2008. The service of this notice on respondent No.1 was brought on record as subsequent event but there is no whisper in the amended writ petition why the notice dated 16.2.2008 convening the meeting of the Panchayat Samiti for - 12 - considering the no confidence motion against respondent No.1 on 25.2.2008 is bad in law. The respondent No.1 has also not pleaded in the writ petition how the election of appellants as Chairman and Vice-chairman held on 11.3.2008 is illegal. In absence of necessary pleadings of illegality regarding notice dated 16.2.2008 for convening the meeting on 25.2.2008 it is not necessary to go into the question whether seven days time provided in sub rule (1 ) of rule 131 would start from the date of issue or service of notice and is mandatory or directory. This vital fact, it appears, escaped the notice of learned Single Judge, therefore, the findings returned by learned Single Judge that there was a clear breach of mandatory provisions of law by not giving a seven days notice to respondent No.1 when the meeting was convened for 25.2.2008 are not sustainable. 15. It has been submitted that proforma respondent No.3 for convening the meeting of Panchayat Samiti for considering no confidence motion against respondent No.1 was acting as quasi judicial authority and he committed illegality when he sought guidelines/clarifications vide letter dated 22.1.2008 annexure P-4 from proforma respondent No.2 regarding holding of meeting for considering no confidence motion against respondent No.1. It has also been submitted that proforma respondent No.2 committed illegality vide letter dated 23.1.2008 annexure P-5 while issuing clarification to proforma respondent No.3 in response to his letter dated 22.1.2008 annexure P-4 knowing fully well that proforma respondent No.3 was acting as quasi judicial authority for convening the meeting. There is no denial of the fact that proforma respondent - 13 - No.3 was to take decision for holding meeting for considering no confidence motion against respondent No.1. It is to be seen that decision taken by proforma respondent No.3 for fixing the date of the meeting of the Panchayat Samiti on 30.1.2008 for considering no confidence motion against respondent No.1 was his honest, independent, bonafide decision or it was taken on the dictation of proforma respondent No.2 and was malafide. The distinction is to be drawn between seeking advice or assistance on one hand and acting under dictation of the superior on the other hand. In Commissioner of Police, Bombay vs. Gordhandas Bhanji AIR (39) 1952 SC16, it has been held that the Committee advised the Commissioner of Police that the application should be granted. Accordingly, the Commissioner accorded the necessary permission by his letter dated 14/16th July, 1947. On those facts, the Supreme Court has observed as follows:- “That, however, would not affect the validity of his order. There is no suggestion that his will was overborne or that there was dishonesty or fraud in what he did. In the absence of that, he was entitled to take into consideration the advice thus tendered to him by a public body set up for this express purpose, and he was entitled in the bona fide exercise of his discretion to accept that advice and act upon it even though he would have acted differently if this important factor had not been present to his mind when he reached a decision. The sanction accorded on 16th July 1947 was therefore a good and valid sanction.” 16. In the present case it is to be seen whether proforma respondent No.3 acted mechanically on the clarification given by proforma respondent No.2 or he acted independently. There is - 14 - nothing in notice dated 23.1.2008 annexure P-6 that proforma respondent No.3 had acted mechanically on the basis of clarification given by proforma respondent No.2 vide letter dated 23.1.2008 annexure P-5. There is also nothing on record that in fixing the date on 30.1.2008 for considering no confidence motion against respondent No.1, the proforma respondent No.3 had acted malafide. The rule 129 provides that on receipt of notice under rule 128, the meeting is to be convened within 15 days from the date of receipt of the notice. It is clear from notice dated 16.1.2008 annexure P-2 that notice under section 129 was received on 15.1.2008 for considering no confidence motion against respondent No.1. It appears proforma respondent No.3 was in dilemma in view of notice received by him on 15.1.2008 under section 129 and the fact that the meeting was fixed on 23.1.2008 was adjourned on 22.1.2008, therefore, he had written the letter dated 22.1.2008 annexure P-4 to proforma respondent No.2. The clarification was given by respondent No.2 vide letter dated 23.1.2008 annexure P-5. On the basis of material on record, it cannot be said that letter dated 22.1.2008 annexure P-4 and clarification dated 23.1.2008 annexure P-5 were exchanged between proforma respondents No.2 and 3 malafide. In any case, no meeting of the Panchyat Samiti was held for considering the no confidence motion against respondent No.1 on 30.1.2008, therefore, letter dated 22.2.2008 annexure P-4 and clarification dated 23.1.2008 annexure P-5 have not caused any prejudice to respondent No.1. 17. The learned counsel for respondent No.1 has submitted that motion shall be deemed to have been defeated under rule 132 if - 15 - within two hours after the time of the meeting the quorum is not present. He has submitted that the meeting to consider no confidence motion against respondent No.1 was fixed on 23.1.2008 and then on 30.1.2008 but on both occasions meeting was not held and therefore, motion shall be deemed to have been defeated. This contention has no force. It is admitted fact that meeting was not held to consider the no confidence motion against respondent No.1 either on 23.1.2008 or on 30.1.2008, therefore, there is no question of defeating the motion under rule 132. 18. The respondent No.1 had participated in the election process for electing Chairman and Vice-chairman of the Panchayat Samiti held on 11.3.2008. In fact respondent No.1 was himself a candidate for the office of Chairman in the election held on 11.3.2008 but