1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT D.B. Civil Special Appeal No.567/2007 Bhanwar Singh Shaktawat vs. The State & ors. Under Rule 134 of the Rajasthan High Court Rules read with Article 225 of the Constitution of India against the order of the learned Single Judge dated 3.5.2007 passed in S.B.Civil Writ Petition No.1303/07. Date of Judgment: March 13th, 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN,J. Mr.M. Mridul, Senior Advocate, assisted by Mr. P.S. Chundawat for the appellant. Mr. M.S. Singhvi for respondent no.4. Mr. Alkesh Agarwal, for the State. REPORTABLE BY THE COURT( Per Hon'ble Mr.Tatia,J): This Special Appeal is against the judgment dated 3.5.2007 by which the petitioner's writ petition was dismissed by the learned Single Judge. The facts in brief are that the Panchayat Samiti, Bhadesar of District Chittorgarh had total 15 members who were eligible to cast their votes on the No Confidence Motion against the Pradhan of the Panchayat Samiti Smt. Pyari Bai. The Motion was put for 2 consideration in the meeting of the Panchayat Samiti held on 22.2.2007. Before 22.2.2007, three orders were passed by the State Government declaring the petitioner and the members Mangi Lal Dangi and Smt. Kamla Devi disqualified and their seats were declared vacant under Section 39(2) of the Rajasthan Panchayati Raj Act, 1994 (for short the Act of 1994) on incurring their disqualification under Section 39(1)(b) of the Act of 1994 on account of their remaining absent in the meetings of the Panchayat Samiti on three continuous occasions without information. Copies of these orders are Annexture-7, Annexture-8 and Annexture-9. However, the orders passed against the Mangi Lal Dangi and Smt. Kamla Devi were withdrawn by the Government on next day only vide orders dated 22.2.2007 (Annexture-10 and Annexture-11). The information of cancellation of declaring the seats of Mangi Lal Dangi and Smt. Kamla Devi as vacant, were sent by fax to the Sub- Divisional Officer who was conducting the proceedings for consideration of No Confidence Motion against Pradhan Smt. Pyari Devi. The orders of dis-qualification of Mangi Lal Dangi and Smt. Kamla Devi were withdrawn by the Government on their representations that before declaring them disqualified to hold the post of Member and declaring their seats vacant, no opportunity of 3 hearing was given to them. According to the petitioner, the petitioner was also not given any notice before declaring his seat vacant after holding him disqualified to hold the post on the same ground of his absence in three continuous meetings of the Panchayat Samiti without information but the order dated 21.2.2007 which was passed against him was not withdrawn malafidely. The petitioner's contention is unique in the sense that the petitioner submitted that the petitioner and the two others Mangi Lal Dangi and Smt. Kamla Devi referred above were in fact disqualified and, therefore, their seats were rightly declared vacant by the State Government vide order dated 21.2.2007. If this contention of the petitioner is accepted then the number of the elected Members of the Panchayat Samiti reduces to 12 only and nine votes are the 1/3rd of the total number of elected Members and are sufficient for carrying out No Confidence against Smt. Pyari Bai. Substantially, the petitioner's contention can find way only when it is held that the orders Annex.10 and Annex. 11 dated 22.2.2007 are illegal or null and void so as to make the orders dated 21.2.2007 (Annex.7 and Annx.8) to be operative. Meaning thereby unless said Members Mangi Lal Dangi and Smt. Kamla Devi 4 are not declared as disqualified to hold the post of Member of the Panchayat Samiti, the petitioner cannot get the relief. The petitioner has, neither in original writ petitionn nor in amended writ petition (filed without permission of the Single Bench) sought relief of quashing above two orders Annex.10 and 11. Further, said Mangi Lal and Smt. Kamla Devi were not impleaded as party in the writ petition and order adverse to them has been sought in arguments only without any prayer in the writ petition. The petitioner's prayer in the original writ petition is as under:- “23. It is, therefore, respectfully prayed that this writ petition may kindly be allowed and- 23/I. By appropriate writ, order or direction it be declared that 23/I/a. The No Confidence Motion against Respondent Smt. Pyari Bai has been carried out and she is no longer entitled to continue as such. 23/I/b. The Respondent Shri Kalu Ram Gurjar be ordered to be removed from the office of the Minister or if such direction is not found feasible, any other appropriate order punishing him be passed. 23/I/c. As for Respondent Shri Khem Raj Choudhary, in the even of it being found that he has not opined according to law and has thus surrendered his discretion he too may be appropriately dealt with. 23/II. Any other appropriate writ, order or directions as my be considered appropriate in the facts 5 and circumstances of this case may kindly be made. 23/III Cost of the writ petition be allowed to the petitioner.” The relief has been claimed against the respondent Kalu Ram Gurjar and Khem Raj Choudhary on the basis of allegation that decision for proceedings in particular manner was taken at the level of Panchayati Raj Department and this has been done to oblige respondent-Smt. Pyari Bai and to ensure that she continues to remain Pradhan of Panchayat Samiti. The petitioner's further contention is that “it cannot be that all that has transpired at Jaipur is doing of the Secretary, Gramin Vikas & Panchayati Raj Department and, therefore, what flows from this is that this must have been done by respondent Shri Kalu Ram Gurjar, Minister, Gramin Vikas & Panchayati Raj Department or under pressure of Shri Kalu Raj Gurjar.” For Khem Raj Choudhary,Secretary , Gramin Vikas & Panchayati Raj Department, the petitioner's allegation is that “fault can be found upon him if he has not opined that what has been required to be done by Shri Kalu Raj Gurjar should not be done as that would be illegal. It would be different matter if Shri Khem Raj Choudhary is found to have informed Shri Kalu Ram Gurjar that all actions taken at the level of the Ministry were not legally tenable. If he has not done so he surely failed to discharge 6 the duties of his office and liable to appropriate order.” The writ petition was listed in Court on 15.3.2007 and on that day it was just passed over. On 17.3.2007 an application for amendment in the writ petition was filed by the petitioner. On 4.4.2007, without obtaining any order on application for amendment of writ petition, writ petition was argued, upon which notices were issued to the respondents. Replies were filed by the respondents no.1 and 5 and by respondent no.4 separately. In reply, respondent no.4 Smt. Pyari Bai, Chair Person of the Panchayat Samiti specifically took objection that she received copies of the amended writ petition along with the notices but when matter was listed before the court on 13.4.2007, the counsel for answering respondents, on inspection, found that there is no order of this Court allowing the amendment in the writ petition sought by the petitioner and in absence of any order allowing the amendment of the writ petition, it was not open for the petitioner for sending the notice of the amended writ petition to the answering respondents. According to learned counsel for respondent no.4, filing of the notice of amended writ petition clearly goes to show that the petitioner has tried to overreach the 7 process of this Court and, therefore, the petitioner is dis-entitled for any relief from this Court in extraordinary jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India. It appears from the record also that the petitioner submitted application seeking relief to amend the writ petition on 17.3.2007 and that application was never allowed nor amended writ petition was taken on record by this Court. Though the application for amendment was filed on 17.3.2007 but for the reasons best known to the petitioner, no order was obtained by the petitioner from the court on this application and the petitioner proceeded with the original writ petition and on original writ petition of the petitioner, notices were issued. The objection was taken in the reply filed by respondent no.4 about sending copy of the amended writ petition to respondent no.4 along with the notices. In reply to the respondent No.4's preliminary objection, the petitioner submitted that the writ petition first came up for consideration before the Court and the court felt that the petitioner should seek a relief regarding restoration of his membership and it was pursuant to that observation that the amended writ petition was filed and came before the Court where after the Hon'ble Court was pleased to direct issuance of the notice. According to the petitioner, it was 8 from this that it was deduced that the amendment has been allowed. The prayer in the amended writ petition is as under:- “23. It is, therefore, respectfully prayed that this writ petition may kindly be allowed and- 23/I. By appropriate writ, order or direction it be declared that 23/I/a. The No Confidence Motion against Respondent Smt. Pyari Bai has been carried out and she is no longer entitled to continue as such. 23/I/aa. The order dated 21.2.2007 (Annex.9) be declared to be illegal and be quashed. 23/I/b. The Respondent Shri Kalu Ram Gurjar be ordered to be removed from the office of the Minister or if such direction is not found feasible, any other appropriate order punishing him be passed. 23/I/C. As for Respondent Shri KhemRaj Choudhary, in the event of it being found that he has not opined according to law and has thus surrendered his discretion he too may be appropriately dealt with. 23/II. Any other appropriate writ, order or directions as may be considered appropriate in the facts and circumstances of this case may kindly be made. 23/III. Cost of the writ petition be allowed to the petitioner.” From the prayers made in the amended writ petition as well 9 as made in unamended writ petition, it is clear that the petitioner has not sought declaration that the orders passed by the State Government dated 22.2.2007 ( Annexs. 10 and 11), by which the State Government's earlier orders dated 21.2.2007 have been cancelled are null or void or be quashed. Yet the petitioner is seeking relief as though the order passed in favour of third party can be ignored or can be set aside without any prayer in writ petition and that too without hearing the affected parties with a consequence that third party Mangi Lal and Smt. Kamla Devi may be unseated from their elected posts as Members of the Panchayat Samiti. Without setting aside the orders Annexs. 10 and 11 passed for the Members Mangi Lal Dangi and Smt. Kamla Devi, the orders disqualifying said Mangi Lal Dangi and Smt. Kamla Devi dated 21.2.2007 cannot come in force and till orders dated 21.2.2007 remain in force, Mangi Lal Dangi and Smt. Kamla Devi remain the Members of the Panchayat Samiti. The orders dated 22.2.2007 also cannot be quashed and set aside nor its legality can be examined in absence of said two Members Mangi Lal Dangi and Smt. Kamla Devi because setting aside and quashing of the orders dated 22.2.2007 (Annexs. 10 and 11) will make the above two persons disqualified to hold the post and their seats will stand vacant and 10 that order cannot be passed without hearing them. In view of above, Mangi Lal Dangi and Smt. Kamla Devi were rightly included in counting total number of Members of the Panchayat Samiti. It will be worthwhile to mention here that the petitioner originally did not pray for quashing of the orders Annexs. 10 and 11 dated 22.2.2007 and also did not challenge those orders, when according to him, he amended the writ petition. If we look into the contention of the petitioner himself submitted in response to the objection of respondent no4 about sending copy of the amended writ petition instead of copy of original writ petition along with the notices then it appears that the petitioner got the clue during initial hearing of his writ petition by the learned Single Bench of this Court that the petitioner should seek relief regarding restoration of his membership. The petitioner is seeking restoration of his membership in the amended writ petition but the conduct of the petitioner is relevant who unequivocally, in his writ petition admitted in para A of the grounds that “The fact that the petitioner and two others remained absent from three meetings is manifest. Merely because nobody complained about it hardly matters. Actually no body cared for it either-not even the others members of the Panchayat Samiti or the Vikas Adhikari. Therefore, 11 the petitioner as well as Shri Mangi Lal and Smt. Kamla Devi cannot but be deemed to have been rendered disqualified. Merely because nobody complained about it, the situation does not change a bit. To all intents and purposes all the three became disqualified.” Keeping this para as it is in the amended writ petition, the petitioner challenges the order dated 21.2.2007 (Annex.9) by which the petitioner was disqualified to hold the post as his seat was declared by the State Government as vacant. It appears that the petitioner is not sure, by adopting which stand, he can seek ouster of respondent no.4 and to oust respondent no.4, he may take self-destructive stand also and prepared to loose his elected post if it helps in ouster of Pradhan of the Panchayat Samiti. The petitioner who admitted that he remained absent continuously in the meetings of the Panchayat Samiti on six occasions, i.e. 118.3.2006, 16.6.2006, 26.6.2006, 27.9.2006, 14.11.2006 and 12.12.2006, as is evident from the petitioners own document Annex.6, a copy of the Attendance Register of the Panchayat Samiti, is seeking disqualification of two Members of the Panchayat Samiti on the ground that the order of restoration of their membership by the State Government is illegal which was passed without giving opportunity of hearing to those persons and 12 at the same time seeking the restoration of his membership even after admitting that he himself and two others remained absent in three meetings and to all intents and purposes, all the three became disqualified. It appears from the facts mentioned above, that the sole aim and object of the petitioner-appellant in filing the writ petition is that respondent no.4 should not work as the Chair Person of the Panchayat Samiti and for that purpose, either treat him a Member of the Panchayat Samiti or may treat him not a Member but remove respondent no.4. If the petitioner and Mangi Lal Dangi and Smt. Kamla Devi, as per the petitioner's own contention in the writ petition, are having the same set of facts then how the petitioner is seeking the relief of declaration of disqualification of the two of the Members Mangi Lal Dangi and Smt. Kamla Devi and claiming that order against him declaring him disqualified be quashed, remained unexplained. It is true that alternate plea can be taken and some time pleas may be contradictory but when it reflects on the conduct of party seeking relief in equitable jurisdiction then that conduct of the petitioner may disentitle the petitioner from claiming relief. Next contention of the petitioner in the writ petition in substance is that the order setting aside disqualification of Mangi Lal Dangi and Smt. Kamla Devi were never communicated to Mangi 13 Lal Dangi and Smt.Kamla Devi and, therefore, they could not attend the meeting which was convened for consideration of No Confidence Motion in question. The argument is devoid of any force in view of the fact that neither said Mangi Lal Dangi nor Smt. Kamla Devi have raised any grievance that the Motion did not carry because of the fact that they were prevented from taking part in the meeting convened for consideration of No Confidence Motion on account of their lack of knowledge about order dated 22.2.2007 in time or they made any effort to take part in the proceedings for No Confidence Motion, but were not allowed to take part in the meeting. Said Mangi Lal Dangi and Smt. Kamla Devi also have not challenging the dropping of the No Confidence Motion even when their disqualification stands removed before consideration of No Confidence Motion by the House against respondent no.4 Smt. Pyari Bai. The petitioner cannot become spokesman of Mangi Lal Dangi and Smt. Kamla Devi nor can become guardian of those Members for the purpose of seeking relief against respondent no.4. Said Mangi Lal Dangi and Smt. Kamla Devi have not filed any affidavit to support the contention of the petitioner. In peculiar facts of the case, the petitioner cannot get any benefit out of State Government's taking decision on 22.2.2007 of withdrawing 14 order of disqualification of Mangi Lal Dangi and Smt. Kamla Devi and its non-communication officially to the said two Members who obtained the orders dated 22.2.2007 in their favour and who are not saying that they had no knowledge of orders passed in their favour or they could not take part in the meeting convened for consideration of No Confidence Motion. Without Mangi Lal Dangi and Smt. Kamla Devi's statements, merely on the basis of their absence in the meeting dated 22.2.2007, it cannot be presumed that they were prevented to take part in the meeting dated 22.2.2007. In absence of their statements, presumption can be drawn that Mangi Lal Dangi and Smt. Kamla Devi were well aware that they could have participated in the meeting for consideration of No Confidence Motion and they,by their choice, did not take part in the said meeting. The learned Single Judge considered the contention of the petitioner that the orders declaring three Members disqualified on the nick of time and declaring two of them qualified on the date when the No Confidence Motion was to be considered and thereafter observed that the petitioner failed to prove that Mangi Lal Dangi and Smt. Kamla Devi were prevented from taking part in the meeting dated 22.2.2007 because of the order dated 15 21.2.2007. At this juncture, it will be worthwhile to mention here that respondents Mangi Lal Dangi and Smt. Kamla Devi themselves obtained order dated 22.2.2007 by which they stand declared Members of the Panchayat Samiti and the petitioner himself had knowledge of those facts in view of the letter of the petitioner dated 21.2.2007, copy of which has been placed as Annex. R.4/1 by respondent no.4. So far prayer of the petitioner, as made in the amended writ petition that order declaring him disqualified may be set aside, is concerned, in the peculiar facts of this case, above relief also cannot be granted to the petitioner-appellant because of the simple reason that the petitioner is not entitled to any equitable relief from this Court under Article 226 of the Constitution of India because of the reason mentioned above which shows that the conduct of the petitioner in filing this writ petition was not clean, rather say appears to be tainted and the petitioners tried to mislead the Court and did not disclose even in the appeal that the amendment in the writ petition was not allowed by the Single Bench of this Court and in view of the fact that on the same set of facts, the petitioner is seeking contradictory reliefs. Further the petitioner himself approached the State Government for setting 16 aside the order of his disqualification and that prayer has already been entertained by the State Government and notice has already been issued to the petitioner to appear before the appropriate authority for consideration of his objection against declaring him disqualified, then this Court is not inclined to interfere in the judgment of the learned Single Judge by which the petitioner's relief for restoration of his membership also stands denied. The petitioner is not entitled to claim relief of declaration that No Confidence Motion against respondent Smt. Pyari Bai has been carried out and she is no longer entitled to continue as such. The petitioner's allegation in the writ petition about the respondents Kalu Ram Gurjar and Khem Raj Choudhary are based on his assumption without there being any factual basis which is apparent from the pleading in the writ petition. The learned counsel for the appellant tried to rely upon the judgment of the Hon'ble Apex Court delivered in the case of S. Pratap Singh v. State of Punjab ( AIR 1964 SC 72) in support of the contention that no order can be allowed to stand if obtained by fraud. The above judgment has no application to the facts of present case in view of the facts and reasons given in preceding paras. 17 We may summarise the entire matter here. In view of the un-amended writ petition, the petitioner has not challenged his disqualification which he incurred by the order of the State Government dated 21.2.2007 and, therefore, he had no locus standi to challenge the process of No Confidence Motion dated 22.2.2007. If we look into the amended writ petition then the petitioner challenged the order disqualifying him as Member of the Panchayat Samiti but he pleaded against his own relief and specifically admitted that he has incurred the disqualification for all purposes, then the relief is contrary to the petitioner's own case admitted in the writ petition. The petitioner's challenge to the orders of the State Government dated 22.2.2007 passed in favour of two Members of the Panchayat Samiti, Shri Mangi Lal and Smt. Kamla Devi, there is no prayer in the writ petition, amended or unamended. The two Members whose disqualification has been sought from the order of this Court, are not party in the writ petition, therefore, in view of the fact that order dated 22.2.2007 passed in favour of those two Members have not been challenged, the petitioner was not entitled to any relief in the writ petition. In view of the above reasons, we do not find any merit in the appeal so far as the above issues are concerned. 18 It will be further worthwhile to mention here that the learned counsel for the appellant during argument submitted that the petitioner-appellant is entitled to relief in alternate that it may be declared that the said No Confidence Motion which was under consideration in the meeting dated 22.2.2007 remained pending for consideration of the House. The prayer is in view of the fact that no second No Confidence Motion can be moved within one year from failing of earlier No Confidence Motion. So far as this relief is concerned, admittedly, a period of one year expired on 22.2.2008 and, therefore, there is no bar against moving of Motion of No Confidence against respondent Smt. Pyari Bai. Further, the petitioner till the order dated 21.2.2007 disqualifying him remains, cannot seek this relief. Therefore, the petitioner is not entitled to this alternate relief. This is further reason for denial of relief to the petitioner-appellant because the Members of the Panchayat Samiti, if have no faith in the Pradhan of the Panchayat Samiti, they can move fresh No Confidence Motion against her. There is no merit in this appeal and the appeal of the appellant is , therefore, dismissed. ( BHANWAROO KHAN) ,J. (PRAKASH TATIA),J.