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1996 DIGILAW 1001 (MP)

Soji Nayak v. State of M. P.

1996-12-06

S.K.DUBEY

body1996
ORDER 1. The petitioner was elected Up-sarpanch of Gram Panchayat Bedi, Tahsil Pushprajgarh, District Shahdol against whom a motion of no confidence was moved which was passed by the Gram Panchayat in the meeting held on 22nd September, 1995. Gram Panchayat consists of 16 members, while in the meeting in all 15 Panchas were present. In the voting one vote was declared invalid while 7 ballots were found in favour of motion of no confidence and the other seven against the motion of no confidence which is evident from the proceedings register Annexure A-1. 2. Section 21 of the M.P. Panchayat Raj Adhiniyam, 1993 (for short 'Adhiniyam') provides no confidence motion against a Sarpanch and Up-sarpanch, which reads thus: "21. No-confidence motion against Sarpanch and Up-sarpanch- (1) On a motion of no-confidence being passed by the Gram Panchayat by a resolution passed by the majority of not less than three fourth of the panch as present and voting and such majority is more than two third of the total number of Panchas constituting the Grain Panchayat for the time being, the Sarpanch or Up-sarpanch against whom such motion is passed, shall cease to hold office forthwith." (2) Notwithstanding anything contained in this Act or the rules made thereunder a Sarpanch or an Up-sarpanch shall not preside over a meeting in which a motion of no-confidence is discussed against him. Such meeting shall be convened in such manner as may be prescribed and shall be presided over by an officer of the Government as the Prescribed Authority may appoint. The Sarpanch or the Up-sarpanch, as the case may be, shall have a right to speak at, or otherwise to take part in the proceedings of the meeting. (3) No-confidence motion shall not lie against the Sarpanch or Up-sarpanch within a period of (i) one year from the date on which the Sarpanch or Up-sarpanch enter their respective office; (ii) six months preceding the date on which the term of office of the Sarpanch or Up-sarpanch, as the case may be, expires; (iii) one year from the date on which previous motion of no-confidence was rejected." 3. The State Government in exercise of powers conferred by sub-section (l) of section 95 read with sub-section (2) of section 21 subsection (2) of section 28 and sub-section (2) of S. 35 of the Adhiniyam has framed the rules known as the M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-sarpanch,Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 (for short 'the Niyam'). Rule 3 of the Niyam speaks of notice of a motion of no-confidence. Rule 4 speaks of appointment of Presiding Officer to hold the meeting. Rule 5 prescribes the manner in which the meeting is to be held, Rule 6 relates to minutes of meeting. Rule 7 says about safe keeping of records. Rule 8 speaks that the decision on any motion of no-confidence is to be communicated by the Presiding Officer to the Prescribed Authority. Rule 9 relates to repeal. For the purposes of present petition rule 5 is relevant which is extracted thus: "5. Conduct of meeting -- (1) The Presiding Officer shall record the attendance of the members of the Panchayat present at the meeting. (2) If the signatory/ies of the no-confidence motion wants to withdraw the motion suo motu he/they may do so in writing and by presenting such notice in person to the Presiding Officer before the no-confidence motion is taken up for consideration. (3) If the motion is not withdrawn suo motu the Presiding Officer shall ask any of the signatories to the notice to move the motion. (4) After the motion is moved the mover shall first speak on the motion and thereafter other members may, if they so desire, speak on the motion. (5) On the conclusion of the debate on the motion, the Presiding Officer shall call the members present in the meeting one by one and shall give them ballot paper duly signed by him to indicate its authenticity, to cast his vote for or against the motion. The member who wants to vote in favour of the motion shall affix the symbol (ok) and the member who wants to vote against the motion shall affix the symbol 'X'. After the member has recorded his vote, he shall fold the ballot paper to maintain secrecy and put it in the ballot box kept on the table of the Presiding Officer. After the member has recorded his vote, he shall fold the ballot paper to maintain secrecy and put it in the ballot box kept on the table of the Presiding Officer. (6) After the voting is over, the Presiding Officer shall take out the ballot papers from the ballot box and sort out the votes for and against the motion. If the number of votes in favour of the motion fulfills the requirement of sub-section (1) of section 21, sub-section (1) of section 28, or sub-section (I) of section 35, as the case may be, the presiding officer shall declare that the motion of no-confidence is passed. In the event of there being an equality of votes in favour and against the motion, the motion would be decided by toss of coin." 4. A bare look to section shows that if the motion of no-confidence is not passed by majority of not less than three fourth of the panchas present and voting and such majority is not more than two third of the total number of Panchas constituting the Gram Panchayat for the time being, such motion of no-confidence moved against the Sarpanch or Up-sarpanch cannot be considered to have been passed. 5. Sub-rule (6) of Rule 5 lays down that after voting is over, the Presiding Officer shall take out the ballot papers from the ballot box and sort out the votes for and against the motion. If the number of votes in favour of the motion fulfills the requirement of sub-section (1) of section 21, sub-section (1) of section 28, or sub-section (1) of section 35, as the case may be, the Presiding Officer shall declare that the motion of no confidence is passed. In the event of there being any equality of votes in favour of and against the motion, the motion would be declared by toss of coin. In the event of there being any equality of votes in favour of and against the motion, the motion would be declared by toss of coin. When section 21 (1) provides the requisite number of votes for passing of the resolution of motion of no-confidence and sub-rule (6) of rule 5 also lays down that if the number of votes in favour of the motion fulfills the requirement of sub-section (I) of section 21, the Presiding Officer shall declare that the motion of no-confidence is passed, the question of' 'in the event of there being an equity of votes in favour of and against the motion, the motion would be decided by toss of coin does not arise." The use of the words in the sentence obviously does not fit in, in view of the requirement of sub-section (1) of section 21 nor it achieves the object of sub-section (1) of section 21. Section 21(1) does not lay down passing of the resolution by simple a majority where the contingency at times may arise in case of equity of votes in favour of or against the motion. It is for this reason, later, the State Government in exercise of powers conferred by sub-section (I) of section 95 of the Adhiniyam by amendment has deleted the sentence "In the event of there being an equality of votes in favour of and against the motion, the motion would be decided by toss of coin", published in M.P. Rajpatra dated 26.12.1995 at pages 1208. also published in 1996 MPLT Part II. 6. In view of the fact that the motion of no-confidence was passed by toss of coin as the number of votes were equal in favour and against the motion of no-confidence cannot be said to be validly passed for want of the requisite number of the votes in favour of the motion of no-confidence as contemplated in section 21(1) of the Adhiniyam. 7. At this stage learned Government Advocate submits that as the motion of no-confidence has been declared invalid and as the period of one year has lapsed it be observed that the clause (iii) of sub-section (3) of section 21 will not come in the way for consideration of motion of no-confidence if moved afresh. 7. At this stage learned Government Advocate submits that as the motion of no-confidence has been declared invalid and as the period of one year has lapsed it be observed that the clause (iii) of sub-section (3) of section 21 will not come in the way for consideration of motion of no-confidence if moved afresh. It is not necessary for this Court to make any observation as the motion of no-confidence can be moved in accordance with the provisions of law. 8. In the result, the petition is allowed with no order as to costs.