Deshraj Singh v. Gram Panchayat, Tilabujurg — 1997 DIGILAW 587 (MP)

ORDER 1. The petitioner Desraj Singh was SarpancSh of Gram Panchayat Tilabujurg having been elected under Section 17 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (for brevity, hereinafter referred to as the Act). The Gram Panchayat Tilabujurg was constituted having him as Sarpach, one Up-Sarpanch and nine other members. 2. A notice for bringing motion of no-confidence against the Sarpanch was given whereupon the prescribed authority, after being satisfied about the admissibility of the notice with reference to section 23, 28 (3) and 35 (3) of the Act, as the case may be, fixed the date, time and place for the meeting of the Gram Panchayat Tilabujurg for consideration of the motion of no-confidence. The meeting for consideration of the motion of no-confidence against the petitioner was held on 24.7.96 and the motion of no-confidence against the petitioner was considered. Under sub-rule (5) of Rule 5 of the Madhya Pradesh 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 brevity, hereinafter referred to as the Rules), it has been provided that the member who wants to vote in favour of the motion shall affix the symbol (right) (tick) and the member who wants to vore against the motion shall affix the symbol (‘X') (cross), against the name of the person against whom no confidence motion is moved. It is a method of recording of votes provided under the rules, maintaining the secrecy, No-confidence motion against the petitioner was declared to have been passed vide Annexure P-3 by the presiding officer. This resolution is under challenge by means of this writ petition. 3. This petition is being finally disposed of with the consent of the learned counsel for the parties. 4. Heard the learned counsel for the petitioner Shri T.S. Ruprah and the learned counsel for the respondents No.1, 4 and 5 Shri P.C. Paliwal, Respondent No.4 Veeran Singh was the Up-Sarpanch of Gram Panchayat Tilabujurg and respondent No.5 Sudhirsingh was the subsequently elected Sarpanch in place of the petitioner, on 11.12.96 during the pendency of this petition. Shri Vivekanand Awasthy, learned State Counsel is also heard. 5. Learned counsle for the petitioner made two-fold submission :- (1) That legally no-confidence motion against the petitioner was not passed but the same failed. Shri Vivekanand Awasthy, learned State Counsel is also heard. 5. Learned counsle for the petitioner made two-fold submission :- (1) That legally no-confidence motion against the petitioner was not passed but the same failed. (2) That the subsequent election of respondent No.5 in place of the petitioner is void, as under the law, bye-election can take place only if there is vacancy in the office of the sarpanch created in accordance with law. 6. In regard to the first submission, the position is that there were 11 Panchas including the petitioner, who was the Sarpanch. U/s 17 (1) of the Act, the Sarpanch is elected from amongst the Panchas of the Gram Panchayat but is directly elected. The Up-Sarpanch is elected after the election of the Gram Panchayat from amongst the Panchas, including the Sarpanch. "Panch" is defined u/s 2 (xvi) of the Act as : "( vxi) "Panch" means a panch of a gram panchayat". Sarpanch and Up-Sarpanch are defined in clause (xxv) of section 2 of the Act, as : "(xxv) "Sarpanch" and "Up-Sarpanch" means the Sarpanch and Upsarpanch respectively of a Gram Panchayat, as the case may be;" 7. In clause (xvi) of section 2, the word "Panch" is defined which means any member of the Gram Panchayat and by virtue of the definition, the Sarpanch, who is independently elected by the general electoral simultaneously with the; members, is, by virtue of sub-section (8) of section 17 of the Act, deemed to be panch of the Gram Panchayat for the purpose of the Act. Thus, the Sarpanch is also a panch of the Gram Panchayat. 8. The total strength of the gram panchayat thus was 11 including the Sarpanch. The intention was indicated in the meeting through a secret ballot paper and marking was done in accordance with the provisions of the Rule 5 of the Rules. Out of 11, eight persons indicated their intention is favour of the motion and 3 persons indicated their intention against the motion of no confidence and on this basis, the presiding officer declared the motion having been passed. 9. Section 21 of the Act deals with the requirements of the no-confidence motion when it is to be treated to have been carried-out. Sub-section (1) of section 21 of the Act is as extracted below :- "(1) On a motion of no-confidence being passed by the Gram Panchayat . 9. Section 21 of the Act deals with the requirements of the no-confidence motion when it is to be treated to have been carried-out. Sub-section (1) of section 21 of the Act is as extracted below :- "(1) On a motion of no-confidence being passed by the Gram Panchayat . by a resolution passed by a majority of not less than three-fourth of the Panchas present and voting and such majority is more than two-third of the total number of panchas constituting the Gram Panchayat for the time being, the Sarpanch or Up Sarpanch against whom such motion is passed, shall cease to hold office forthwith." It provides that the resolution of the Gram Panchayat must have been passed by a majority of not less than three-fourth of the panchas present and voting. So the question for consideration is whether on the basis of the above figures what would be the minimum strength by which a motion could be said to have been passed in the present case. The three-fourth of 11 comes to be 8.2. The words used in the provision are "not less than three-fourth of the Panch as present and voting". The presiding officer treated the figure of 8 as sufficient figure for the Resolution of no-confidence to have been passed against the petitioner. The figure 8 is less than three-fourth of 11 panchas present and voting and therefore, the presiding officer/returning officer has erred in law as the figure 8 is less than three-fourth of II panchas present and voting. The words "not less than" mean it must be three-fourth of the panchas present and voting and not less, which in the present case, must be 9. So far as the other requirement u/s 21 (1) of the Act is concerned that is two-third majority of the total number of Panchas constituting the gram panchayat for the time being, it is not relevant here, as there is no dispute in regard to this. 10. In view of the above the position comes that the motion of no-confidence was not passed but in fact it failed under the law. 11. Now the second question comes for consideration. 12. The learned counsel for the petitioner submitted that the subsequent election for the office of the Sarpanch in place of the petitioner, as bye-election, took place on 11. 12. 1996 was void. 11. Now the second question comes for consideration. 12. The learned counsel for the petitioner submitted that the subsequent election for the office of the Sarpanch in place of the petitioner, as bye-election, took place on 11. 12. 1996 was void. The election was held without there being any vacancy in the office of the Sarpanch. Gram Panchayat Tilabujurg, and was not in accordance with the requirement of law. 13. Learned counsel for the respondent No.4 and 5 as well as the learned State Counsel resisted the second submission and submitted that bye-election having taken place, the writ petition has become in fructuous and the petitioner, under the circumstances, has no right of the office of the Sarpanch. In support of the submission, reliance was placed on the case of the Supreme Court -- S.R. Bommai v. Union of India [ AIR 1994 SC 1918 ]. That case was relating to the validity of the proclamation made by the President of India under Article 356 of the Constitution and the matter related to the dissolution of the legislative assemblies of State of Madhya Pradesh, Rajasthan, Himachal Pradesh, Karnataka and Meghalaya, The proclamation was held valid except in the case of Karnataka and Meghalaya. In those two States, since fresh election for the legislative assemblies had taken place and the new Government came into existence, the Supreme Court did not struck down the fresh election, though held the proclamation to be unconstitutional. In subpara (11) of Para 365 of the said report, the Supreme Court held :- "(11) The proclamation dated April 21, 1989 in respect of Karnataka (Civil Appeal No. 3645 of 1989) and the proclamation dated October 11, 1991 in respect of Meghalaya (transferred Case Nos. 5 and 7 of 1992) are unconstitutional. But for the fact that fresh election have since taken place in both the States - and new Legislative Assemblies and Governments have come into existence n we would have formally struck down the proclamation and directed the revival and restoration of the respective governments and Legislative Assemblies. The Civil Appeal No. 3645 of 1989 and Transferred Cases Nos. 5 and 7 of 1992 are allowed accordingly. Civil Appeal Nos. The Civil Appeal No. 3645 of 1989 and Transferred Cases Nos. 5 and 7 of 1992 are allowed accordingly. Civil Appeal Nos. 193 and 194 of 1989 relating to Nagaland are disposed of in terms of the opinion expressed by us on the meaning and portion of Article 74 (2) of the Constitution.' In para 199, it was observed that ''The dissolution of the Meghalaya Assembly though vulnerable to attack as unconstitutional, it in fact has become in fructuous due to subsequent elections and the newly elected State Legislature and the Government of the State of Meghalaya are functioning thereafter." In para 73 of the said report, the Court observed: "....The check would become meaningless and rendered ineffective if the President takes irreversible actions while exercising his powers under sub-clauses (a), (b) and (c) of Clause (1) of Article 356." The Court observed in Para 74 : "... It may, however, be made clear that it is for the Court to mould the relief to meet the requirements of the situation. It is not bound in all cases to grant the relief of restoration of the Legislative Assembly and the Ministry. The question of relief to be granted in a particular case pertains to the discretionary jurisdiction of the Court." The question of relief to be granted in a particular case pertains to the discretionary jurisdiction of the Court. Any rider on the power of the Court by any such interpretation would be to permit the executive for acting in an arbitrary manner. 14. In the present case, the legal position was clear in regard to the Resolution and the Resolution in all fairness should have been declared to have failed on a plain and clear reading of section 21 of the Act but the elements of arbitrariness pervaded which resulted in the arbitrary declaration against the petitioner that the Resolution regarding no confidence motion has been carried over. 15. The learned State counsel also relied the same decision of S.R. Bommai (supra) and the submission advanced was the same as was relied on by the learned counsel for the respondents No.4 and 5, Even otherwise, in the case of S.R. Bommai v. Union of India (supra) the legal position was in a fluid stage which was settled down by the Supreme Court. Here in the present case, the legal position u/s 21 of the Act was not in a fluid stage so to creat doubt in the mind of the presiding officer. 16. On ultimate analysis, the conclusion comes that the motion of no confidence against the petitioner was illegally declared as having been passed by the presiding officer which under the law, failed and against such an illegal declaration, no consequence can flow to deprive the petitioner of his valid right to hold the officer of Sarpanch. 17. In view of this, the petition succeeds and is allowed. The impugned Resolution -- Annexure P-3 passed against the petitioner, declaring that the no-confidence motion against him has been passed, is quashed as well as the subsequent election of the respondent No.5 to the so-called vacancy of the office of the Sarpanch of Gram Panchayat Tilabujurg held on 11.12.96 is declared void, as there was no question of holding of the bye-election as no vacancy of the office of Sarpanch of Gram Panchayat Tilabujurg legally existed. In the circumstances of the case, no order as to costs. The petitioner shall assume the charge of Sarpanch and the respondents are restrained from interfering in his functioning as Sarpanch of Gram Panchayat Tilabujurg, in any manner whatsoever on the basis of the impugned motion of no-confidence.