JUDGMENT
N.P. Chapalgaonker, J.
1. Since these three petitions raise connected questions of fact and law, they are being disposed of by this common order.
2. A requisition was submitted to the Collector, Jalgaon on 11th December, 1995 requesting to call a meeting of Panchayat Samiti, Bhadgaon for expressing no confidence on its Chairman Pradip Gulabrao Pawar. Collector, Jalgaon issued a notice of special meeting of Panchayat Samiti on 16th December, 1995 and the meeting was to take place on 29th December, 1995 at 12 noon under the Chairmanship of Assistant Collector, Pachora. Collector, Jalgaon had issued these notices to elected members of Panchayat Samiti and not to elected members of Zilla Parishad from Bhadgaon Panchayat Samiti area who by virtue of section 57(1)(a) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 had automatically became members of Panchayat Samiti, Bhadgaon.
3. The petitioner in Writ Petition No. 5886 of 1995 Pradip Gulabrao Pawar, Chairman of Panchayat Samiti was given a notice that he is free to attend the meeting but would not be entitled to vote because of the amendment to section 72 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. Petitioner by this writ petition prayed for stay of the meeting dated 29th December, 1995 alleging that the proposed meeting is not a valid one. The main ground was that the notices were not issued to the members of the Zilla Parishad who ex-officio became members of the Panchayat Samiti, Bhadgaon and unless a notice of 7 clear days is not given to them as required in law, meeting will not be lawful. Meeting was stayed by Vacation Judge by his order dated 28th December, 1995.
4. A Civil Application was moved by the respondents for vacating interim relief granted by this Court and this Court by its order dated 10th January, 1996 was pleased to vacate interim relief but directed the Collector that he should issue notice to all the members of Panchayat Samiti including those who have become members by virtue of their being elected members of Zilla Parishad from that Panchayat Samiti area. Consequent upon this order of the Court, the Collector, Jalgaon issued a fresh notice calling meeting of Bhadgaon Panchayat Samiti on 17th January, 1996 and the meeting was to take place on 29th January, 1996. The proposed meeting and the notices were challenged in Writ Petition No. 334 of 1996. This Court vide its order dated 25th January, 1996 stayed the meeting dated 29th January, 1996 and posted the matter for hearing on the same day. These petitions are taken up for hearing today.
5. Though Writ Petition No. 334 of 1996 challenges the Maharashtra Ordinance No. XV of 1995 amending the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which was promulgated by the Governor of Maharashtra on 30th October, 1995 amending sections 49, 72 and 87 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, Shri R.N. Dhorde, learned Counsel appearing on behalf of the petitioner, withdrew his challenge to the Ordinances so far as this petition is concerned. Therefore, we are not required to consider validity of these Ordinances for the disposal of this writ petition.
6. First contention raised by Shri Dhorde is that the meeting which was to take place on 29th December, 1995 and the subsequent meeting which was scheduled to take place on 29th January, 1996 were both invalid inasmuch as the notices of the said meeting were not issued within 7 days from the date of the receipt of the requisition by the Collector. According to Shri Dhorde, to convene a meeting means to issue notice of the meeting by fixing a date as contemplated by the Act to all the members who are entitled to sit and vote. If the notices have not been sent to all the members, then the meeting becomes invalid. Second contention raised by Shri Dhorde is that any requisition would be operative firstly for the 7 days requiring Collector to act by convening a meeting and thereafter for another 30 days within which the Collector has to actually hold the meeting. Thereafter, the requisition will automatically lapse and since the original requisition was dated 11th December, 1995, Collector had no jurisdiction to convene a meeting and schedule it on 29th January, 1996. Shri Dhorde invited our attention to sub-section (5) of section 72 which reads that the meeting called under this section shall not, for any reason, be adjourned. Observations in paragraph 16 of the judgment of this Court in the case of Baburao Atmaramji Lande v. Collector, Chandrapur and another, 1983 Mh.L.J. 792 were pressed in service to contend that the meeting has to take place within the statutory period and if the meeting cannot take place within the statutory period indicated in section 72, then the requisition lapses. Shri Dhorde submits that if the statute requires something to be done in a particular manner, it will have to be done in that manner only and no other mode is permissible. Section 72(3) lays down that the Collector shall within seven days from the date of receipt of the requisition under sub-section (2) convene a special meeting of the Panchayat Samiti which shall be held on a date not later than thirty days from the date of issue of the notice of the meeting. Relying on this mandate, Shri Dhorde wants to submit that no meeting can take place beyond a period of 30 days commencing from the seventh day after the requisition is submitted to the Collector.
7. It is true that the Collector is bound to convene the meeting within seven days and hold it on a date which is not later than thirty days from the date of the notice of the meeting. There is no discretion left to the Collector. The question was raised and partially considered by this Court in the case of Ashok Maniklal Harkut v. Collector, Amravati and others, 1988 Mh.L.J. 378 : 1988(1) Bom.C.R. 399. In paragraph 15 of the said judgment, this Court observed thus:
“It has not been laid down in the Act as to what will happen if the Collector fails to carry on the duty imposed upon him by sub-section (3) of section 55. Will it mean that by mere inaction or negligence on the part of the Collector the requisition will lapse and that too for no fault of Requisitionists? Therefore, the said provisions will have to be construed as to further its object and not to defeat it.”
Though the Full Bench in the case of Ashok Maniklal Harkut, 1988 Mh.L.J. 378 : 1988(1) Bom.C.R. 399, was considering provisions of section 55 of the Maharashtra Municipalities Act, 1965, the question is very much pertinent in respect of other local authorities where similar provisions exist. Sub-section (3) of section 72 of the Zilla Parishads Act cast a statutory duty on the Collector and looking to the urgency of the matter, legislature fixed outer limit within which the meeting is to be held but it does not provide for the consequence that the requisition automatically lapses if the meeting could not take place within the said period. The provision will have to be read to further its object. The purpose is to give an opportunity to the members to express their no confidence on office bearers of the Zilla Parishad or Panchayat Samiti as the case may be and, therefore, if the Collector has failed in his duty or the meeting could not take place within the statutory outer limit because of the stay orders of any Court or for similar reason (for example; meeting stayed by the State Government), it does not follow that the requisition would lapse. Unless the members are given an opportunity to consider the motion, there is no propriety in holding that the requisition would lapse unless statute provides for that. Requisition calling Collector to convene a meeting will stand or fall on the sole fact whether statutory requirements of section 72(2) and the rules made therefor are followed or not. It will cease to exist only after meeting takes place and not otherwise. There is no provision in the statute for the lapse of requisition. Right of the requisitionist member to ask for the meeting continues despite meeting not having taken place within 30 days either because of inaction of the Collector or for any other reason.
8. Second point urged by Shri. R.N. Dhorde, Counsel for the petitioners in Writ Petition No. 5886 of 1996 and Writ Petition No. 334 of 1996 and by Shri K.G. Navandar, Counsel for the petitioner in Writ Petition No. 54 of 1996, is in respect of the right of the members of the Zill Parishad elected from that Panchayat Samiti area to sit and vote as members of the Panchayat Samiti. Section 57 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, as it then stood, by virtue of Clause (a) of sub-section (1) of that section had given membership of the Panchayat Samiti to all Councillors who are elected to the Zilla Parishad from the electoral divisions included in the Block. 73rd Constitutional Amendment inserting Part IX made provisions about the composition of the Panchayats and by sub-Article (2) of Article 243-C, it provided that all the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area. Clause (a) of sub-article (3) authorises to give representation of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level. But the legislature was not empowered to make provisions for the representation of the Zilla Parishad members or any other district level Panchayat on the body at the intermediate level Panchayat Samities in Maharashtra. Since major changes were effected by the Constitutional amendment in the composition of intermediate level and the district level Panchayats, it was necessary to make provision about the existing Panchayats. Constitutional amendment did take care about this exigency. Article 243-N provided that provision of any law relating to Panchayats in force in a State immediately before the commencement of the Constitution (Seventy-third Amendment) Act, 1992, which is inconsistent with the provisions, Part IX shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier and the proviso to this Article made a very specific and distinct provision about the manner in which existing Panchayats are to be dissolved. The proviso runs as under:-
“Provided that all the Panchayats existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.”
Panchayat Samiti has been defined by section 2(2) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 to mean, the Panchayat Samiti constituted for every block under section 57. Section 57 provides for the constitution of the Panchayat Samiti and the same constitution will continue till remainder of the term of the present Panchayat Samiti or earlier if dissolved by a Resolution of the Legislature. To hold that the amendment incorporated by the Act of 1994 deleting Clause (a) of sub-section (1) of section 57 will affect the existing Panchayat Samitis also will be to allow partial dissolution of the existing Panchayat Samitis without a Resolution of the Legislature to that effect, which is not permitted. Needless to say that the Constitution will override all other statutes passed by the State or the Central Legislature and the Constitution gave mandate that the existing Panchayats shall not be dissolved otherwise than by a Resolution of the Legislature of that State. This prohibition operates even in the case of statutes passed by the State Legislature. Therefore, the State Legislature was not competent to pass any amendment to the Act which would in effect dissolve the existing Panchayats before the end of their duration.
9. The learned Counsel appearing on behalf of the respondents submitted that Article 243-N lays down that the old bodies will continue for a period of one year or till amendment is made in the relevant statute by the State Legislature. We do not find such a meaning flowing from Article 243-N. It merely declares that the provisions of the Constitution relating to Panchayats in the Constitution which are inconsistent with Part IX of the Constitution will be in force for a period of one year or till they are suitably amended to conform with Part IX of the Constitution whichever occurs earlier. In effect, Constitutional amendment gives one year time for the State Legislature to conform their laws in respect of the constitution of Panchayats with Part IX of the Constitution. If the State Legislature chooses not to amend relevant statute for a period of one year from the commencement of this Seventy-third Amendment, then the effect would be that provisions of the State statute will stand annulled or modified so far as they are inconsistent with Part IX of the Constitution. But this has nothing to do with the existing Panchayats. Proviso to Article 243N is not the only provision in the form of saving Clause but the same has been stated emphatically in Article 243-E(2). Sub-Article (2) of Article 243-E reads as under:-
“(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in Clause (1).”
Article 243-E by its sub-Article (1) provides 5 years term for every Panchayat and sub-Article (2) specifically saves Panchayat Samiti who are in office at the time of 73rd Amendment from dissolution before the expiry of term of five years by amendment of the statute.
10. Normally, the function of proviso is to except something out of the purview of provision or to qualify something enacted therein, which but for the proviso would be covered by the enactment. As was pointed out by the Supreme Court in Kedarnath Jute Manufacturing Co. Ltd. v. The Commercial Tax Officer and others, , the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it. Proviso to Article 243-N excepts all existing Panchayats from the operation of first part of Article 243-N. Proviso clearly lays down that though the constitution of these Panchayats may be inconsistent with the Seventy-third Constitutional Amendment, still they will continue to be in office until their term is over or they are dissovled earlier by a resolution of the Legislature of the State. The proviso clearly lays down that even the State Legislature has no right to amend the relevant provisions of the State law in respect of the Panchayats to dissolve existing Panchayats. The second point to be considered is what is the effect of the statutory amendment made in compliance of Article 243-N? Whether those amendments will be retrospective or prospective? The mandate contained in Proviso to Article 243-N decides this issue and all amendments of enactments made to the statute governing the constitution of Panchayats in that State will be prospective elections which will take place after those enactments or in the absence of any amendments to the enactment, then in conformity with Part IX. Till occasion for a fresh election arises, old Panchayats will continue in their office for the remainder of their term. The only power given to put to an end to their existence is with the State Legislature by passing resolution to that effect and no automatic dissolution is contemplated by amending the statute governing them. passing a resolution by a Legislature is a different mode of legislative business as distinct from passing an Act.
11. The learned Government Pleader Shri A.M. Kanade submitted that though the Panchayats as a whole have not been dissolved and could not be dissolved, the constitution of this Panchayat Samiti will stand automatically amended because of the amendment in the statute. He further submitted that the interpretation which the petitioners want to advance, will create anomaly that there would be two different kinds of Panchayat Samitis in existence in the State; one according to the old laws and another according to the new amendment to the statutes. This by itself is not objectionable. The Panchayat Samitis in existence are a distinct class and the Panchayat Samitis who will hold their elections after amendment of the statute in furtherance of Part IX in the Constitution, is a different class. Shri Kanade further contended that the members of the Zilla Parishad will cease to hold office as Members of Panchayat Samiti because of the amendment of section 57 wherein Clause (a) to sub-section (1) is now deleted and the amendment of section 64, wherein Clauses (a) and (f) of sub-section (1) of section 57 stood deleted. Since we are of the opinion that these amendments made by the Maharashtra Act XXI of 1994 are prospective in nature and would apply to the new elections and to the new Panchayat Samitis, submission of Shri Kanade will have to be rejected. There is presumption about the law being prospective and unless the intention of the Legislature is very clear; law shall not be held to be retrospective. A retrospective law takes away rights of the person already accrued to them and, therefore, unless intention of the Legislature is evident, it can never be presumed that the law is retrospective.
12. In the instant case, we find that there is constitutional amendment that this Panchayat Samiti will continue in office for the remainder of their term under the old statute. If they are continued, they will have to continue with their composition. We cannot presume the continuation of an institution or a body corporate by change in their composition. If the Legislature has saved body corporate, then it will have to be presumed that it has saved its composition. If the members of the Zilla Parishad elected from that Block or Panchayat area or the members of the existing Panchayat Samitis, they will continue to be members of that Panchayat Samiti until the whole constitution of the Panchayat Samiti is changed at a fresh election. If they are the members, then their right to vote cannot be taken away. We do not see any part of the statute which has become operative so as to deny this right to the members of the Zilla Parishad who are automatically members of that Panchayat Samiti.
13. Section 72 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, even as amended by the Amendment Act of 1994, provides for passing No-confidence motion by the members entitled to sit and vote. Since members of the Zilla Parishad are the members of the Panchayat Samiti of that Block, entitled to sit and vote, they are very much entitled to vote at resolution expressing no-confidence on the Chairman and the Deputy Chairman, as the case may be.
14. The learned Government Pleader relies on a Circular dated 27th November, 1995 issued by the State Government whereby it was directed that consideration of vote of no confidence against the office bearers of the Panchayat Samitis, which are in existence since before 23rd April, 1994, the members of the Zilla Parishad elected from that Panchayat, will be allowed to be present but will not be entitled to vote. The interpretation put in by the Deputy Secretary of the State Government, while issuing this Circular, is not correct. Since we have held that the members of Panchayat Samiti under section 57(1) (a) would continue to hold office and will be entitled to sit and vote in the meeting called for consideration of vote of no confidence, the circular will be ineffective and will have to be ignored.
15. By way of interim relief, we had directed in these petitions the Collector to issue notices to all Zilla Parishad members. We had allowed members of the Zilla Parishad to sit and vote at such meetings. We confirm that interim relief and hold that the members of Zilla Parishad, who are ex-officio members of the Panchayat Samiti governing the Block from which they are elected to the Zilla Parishad, will continue to be members of the Zilla Parishad entitling them to sit and vote at all meetings until a composition of the Panchayat Samiti is changed after the dissolution of the present Panchayat Samiti, either by expiration of their term of office or by a resolution passed by the competent Legislature.
16. In this case, we refrain from considering questions raised by Shri Dhorde in respect of the validity of the proposed meeting on 29th December, 1995 or 29th January, 1996 since it would be purely an academic question. For the reasons stated by us in the foregoing paragraphs, meeting could not take place. Only question to be decided is whether the meeting on the basis of the same requisition can now take place. By way of interim relief, on 30-1-1996, we had directed the respondent Collector, Jalgaon to hold the meeting of the Panchayat Samiti on 15-2-1996 giving notices to all members of the Panchayat Samiti entitled to sit and vote, including members of the Zilla Parishad, Jalgaon, who by virtue of their being elected members of the Zilla Parishad from Bhadgaon Samiti area, are ex-officio members of Bhadgaon Panchayat Samiti. We are told that meeting is being convened. Rule made absolute in all these petitions. In the circumstances, there will be no order as to costs.
17. Though the petitioners have succeeded and since we have held that the earlier requisition does not lapse and the meeting to consider vote of no-confidence called on the basis of that requisition, Shri Dhorde, appearing on behalf of the petitioners, seeks four weeks’ stay to the operation of this judgment. In the circumstances of this case, we do not see any reason to grant the request and it is rejected. Similar request made by the Government Pleader is also rejected.