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Madhya Pradesh High Court · body

2001 DIGILAW 676 (MP)

Rajaram Patel v. State of M. P.

2001-09-13

DIPAK MISRA

body2001
ORDER 1. Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution, the petitioner has prayed for calling for the entire records of the proceeding before the prescribed authority pertaining to the issuance of the notice for motion of no-confidence and further to issue a writ of certiorari quashing the Annexure P-3 and to pass such order/orders as may be deemed fit and proper in the facts and circumstances of the case. 2. The facts as have been portrayed in the writ petition are that the petitioner was elected as the Sarpanch of Tilhari Panchayat, District Jabalpur as the said post fell vacant in the year 2000. The election for the member of the Gram Panchayat was held on 11.12.1996 in which the respondent No.4 was elected as the Sarpanch and he assumed office on 23.1.1997 when the prescribed authority convened the first meeting under section 20 of the M.P. Panchayat Raj Adhiniyam, 1993. It is pleaded in the writ petition that the term of the Panchayat is five years commencing from the date of the first meeting. The election of respondent No.4 was declared void as a result of which a vacancy in the post of Sarpanch arose and in the bye-election, the petitioner was elected as the Sarpanch. The first meeting was held on 6.8.2000. It is put forth that the term of the office-bearers of the Gram Panchayat is for five years from the date of the first meeting. It is pleaded that the petitioner's term will expire on 22.1.2002. It has been set forth that while he was perfoming his work in a satisfactory manner and there was no complaint against him and he was raising the issue of large scale corruption against the respondent No.4, he received a notice from the Sub-Divisional Officer (Revenue), the respondent No.2, indicating that a motion of no-confidence has been moved by ten members of the Gram Panchayat. It is urged in the petition that the notice issued vide Annexure P-3 by the prescribed authority is illegal and unjustified as such a notice could not have been issued in view of the provisions enshrined under section 21 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (Act 1 of 1994) (hereinafter referred to as 'the Act'). 3. It is urged in the petition that the notice issued vide Annexure P-3 by the prescribed authority is illegal and unjustified as such a notice could not have been issued in view of the provisions enshrined under section 21 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (Act 1 of 1994) (hereinafter referred to as 'the Act'). 3. This Court, by order dated 18.8.2001, directed the copy of the writ petition to be served on the learned Deputy Advocate General and directed the meeting relating to motion of no-confidence shall take place but the result of the same shall not be given effect to. The matter was finally heard on 28.8.2001. 4. Mr. R.P. Kanojiya, learned counsel for the petitioner submitted that if the language employed under-section 21 of the Act is read in proper perspective, the Annexure P-3 is absolutely invalid inasmuch as the motion of no-confidence cannot lie within a period of six months preceding the date on which the term of the Sarpanch expires and, further, not within one year from the date on which the Sarpanch enters office. The learned counsel has placed reliance on the decision rendered in the case of Bhulin Dewagan v. State of M.P. and others [2002(2) JLJ 253 = 2001(2) MPLJ 372 ]. 5. Mr. R.S. Jha, learned Dy. A.G. has submitted that the petitioner has not approached this Court with clean hands inasmuch as the meeting was fixed prior to six months from the date of expiry of the term but the petitioner moved the Collector and obtained an order of stay and after the Collector was apprised of the fact-situation, he rejected the revision petition. It is urged by him, thereafter the competent authority issued a notice vide Annexure P-3, but the petitioner has not whispered even a single word in regard to the aforesaid aspect and hence, he is not entitled to any relief from this Court in exercise of its equitable jurisdiction. The learned Dy. A.G. has further submitted that the petitioner cannot be allowed to move a forum and get the proceeding stayed and avail the benefit of six months. It is further urged by him that the period of one year as envisaged under section 21 of the Act has to be computed from the date of the first meeting. 6. A.G. has further submitted that the petitioner cannot be allowed to move a forum and get the proceeding stayed and avail the benefit of six months. It is further urged by him that the period of one year as envisaged under section 21 of the Act has to be computed from the date of the first meeting. 6. To appreciate the rival submissions raised at the Bar, I have carefully perused the pleadings in the writ petition. On a close scrutiny of the application, it is noticeable that there is no reference to the fact that the petitioner had moved the Collector in a revision. True it is, on perusal of Annexure 3 it is apparent that the Collector entertained the revision and granted stay and thereafter dismissed the revision. But, a significant but, the petition is absolutely silent in this regard. It has been said silence is golden but non-mentioning of relevant and essential facts which are within the special knowledge of the petitioner, in the petition cannot be equated with the serenity and sanctity of silence. In fact, non-mentioning of this fact can categorically be held to be suppression of material fact. Ordinarily on this ground alone, I would have refused to address on other issues but as certain points of law were argued by Mr. Kanojiya and on a perusal of Annexure P-3 the facts are discernible, I proceed to deal with the core issues. Section 8 of the Act deals with the constitution of Panchayats. Section 9 deals with the duration of Panchayatand stipulates that every Panchayat shall continue for five years from the date appointed for its first meeting and no longer unless sooner dissolved under this Act. Section 17 deals with the election of Sarpanch and Up-Sarpanch. Section 19 of the Act deals with the notification of election. Section 20 relates to the first meeting and term of office. It is apposite to reproduce section 20 of the Act which reads• as under : "20. First meeting and term of office -- (1) First meeting of the Gram Panchayat shall be held within 30 days of the date of the publication under section 19. Such meeting shall be convened by the prescribed authority and the provisions of section 44 regarding meeting as far as may be shall apply in respect of the said meeting. First meeting and term of office -- (1) First meeting of the Gram Panchayat shall be held within 30 days of the date of the publication under section 19. Such meeting shall be convened by the prescribed authority and the provisions of section 44 regarding meeting as far as may be shall apply in respect of the said meeting. (2) The office-bearers of the Gram Panchayat shall hold office for five years from the date of the first meeting and no longer: Provided that notwithstanding anything contained in this sub-section, every person becoming an office-bearer of a Gram Panchayat shall cease to hold office forthwith – (i) on his ceasing to be a voter of the Gram Panchayat area; or (ii) on his becoming a member of State Legislative Assembly or member of either House of Parliament (3) If before the expiry of the period mentioned in sub-section (2), the Gram Panchayat is not reconstituted, it shall stand dissolved on the expiry of the said period and the provisions of section 87 shall apply thereto for a period not exceeding six months within which the Gram Panchayat shall be reconstituted in accordance with the provisions of this Act." Section 21 deals with no-confidence motion against Sarpanch and Up-Sarpanch. The said provision being relevant for the present purpose is quoted below : "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 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. (2) Notwithstanding anything contained in this Act or the rules made there under, 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 proceeding of the meeting. 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 proceeding 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. (4) If the Sarpanch or the Up-sarpanch, as the case maybe, desires to challenge the validity of the motion carried out under sub-section (1), he shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide it, as far as possible, within thirty days from the date on which it was received by him, and his decision shall be final" First submission of Mr. Kanojiya is that as per section 21(3)(ii), no-confidence motion could not have been moved within a period of six months preceding the date on which the term of office of the Sarpanch expires. It is urged by him that as the term has to expire on 22.1.2002 and the meeting was fixed on 20th August, 2001, it is within six months before the date of expiry of the term and hence, hit by the aforesaid provision. Mr. R.S. Jha. learned Deputy Advocate General has submitted that initially the meeting was fixed before six months but the petitioner moved the Collector and obtained the order of stay and by his own conduct, cannot be allowed to frustrate the meeting. Mr. Kanojiya, learned counsel for the petitioner did not dispute the fact that the first notice was issued prior to six months and date of meeting was also fixed prior to six months. The said aspect is quite clear on a scrutiny of Annexure P-3. Mr. Kanojiya, learned counsel for the petitioner did not dispute the fact that the first notice was issued prior to six months and date of meeting was also fixed prior to six months. The said aspect is quite clear on a scrutiny of Annexure P-3. In this factual backdrop, I am of the considered opinion when notice of no-confidence was issued and the date was fixed before expiry of six months but the proceeding was stayed at the instance of the petitioner and ultimately he did not succeed in his effort, he cannot take the benefit of the said sub-section. It is canvassed by Mr. Kanojiya that it is not an adjourned meeting so that it can be held again. The aforesaid submission is only noted to be rejected inasmuch as the meeting could not have been adjourned for the simple reason that the petitioner had obtained the order of stay from the Collector. Under these peculiar circumstances, the mandate contained in the sub-section (3) of 21 of the Act would not be attracted. Hence, I repel the aforesaid submission of the learned counsel for the petitioner. 7. The second limb of argument of the learned counsel for the petitioner is that as the petitioner took charge of the office of the Sarpanch on 29.6.2000 and the first meeting was held on 6.8.2000, no confidence motion cannot be initiated within one year from the date on which he had entered office. The aforesaid submission has been controverted by Mr. Jha highlighting that one year is to be computed from the date on which the Sarpanch entered office and that one year has to be counted according to the language employed under section 20 of the Act. As per section 20, the first meeting of the Gram Panchayat has to be held within thirty days from the date of publication under section 19 and such meeting shall be convened by the prescribed authority. It is worth nothing here that section 19 stipulates that every election of Sarpanch, Up-Sarpanch and Panchas shall be published by the prescribed authority in such manner as may be prescribed. Sub-section 2 of section 20 clearly stipulates that office-bearers of the Gram Panchayat shall hold office for a period of five years from the date of first meeting. It is not disputed by Mr. Sub-section 2 of section 20 clearly stipulates that office-bearers of the Gram Panchayat shall hold office for a period of five years from the date of first meeting. It is not disputed by Mr. Kanojiya that the term of the petitioner is to expire on 22.1.2002 as the first meeting was held on 23.1.1997. 8. It is submitted by Mr. Jha that the provisions enshrined under sections 20 and 21 have to be read conjointly so that the purpose of the statute can be properly appreciated. According to him, an office-bearer of the Gram Panchayat is entitled to hold office for a period of five years from the date of the first meeting and the first meeting is to be held within thirty days from the date of publication of notification under section 19 which deals with the notification of election. Relying on this provision, it is urged by Mr. Jha that the petitioner, though was elected in the bye-election, should be deemed to have been entered into office from the date of first meeting which was held on 23.1.1997. The aforesaid submission of Mr. Jha, though on a first look seems quite attractive but, on a deeper scrutiny it pales into insignificance. In this context, I may usefully refer to section 38 of the Act which provides for the filling up of vacancy. Section 38(1) reads as under: "38. The aforesaid submission of Mr. Jha, though on a first look seems quite attractive but, on a deeper scrutiny it pales into insignificance. In this context, I may usefully refer to section 38 of the Act which provides for the filling up of vacancy. Section 38(1) reads as under: "38. Filling up of vacancies -- (1) (a) In the event of death, resignation, no-confidence motion, or removal of an office-bearer of a Panchayat or on his becoming a member of State Legislative Assembly or a member of either House of Parliament before the expiry of his term, a casual vacancy shall be deemed to have occurred in his office and such vacancy shall be filed as soon as may be by election in accordance with the provisions of the Act and the rules made thereunder: (b) in the event of occurrence of a casual vacancy in the office of the Sarpanch of a Gram Panchayat, the Secretary of the Gram Panchayat, as the case may be, shall cause to be called a special meeting of the Panchayat immediately, but not later than fifteen days from the date of receipt of information from the prescribed authority regarding the vacancy and the members shall elect from amongst themselves a person to hold the office temporarily till a new Sarpanch, as the case may be, is elected in accordance with the provisions of this Act and the rules made thereunder and such officiating Sarpanch, as the case may be, shall perform all the duties and exercise all the powers of Sarpanch, during the pendency of election: Provided that if the office of the Sarpanch is reserved for the member of Scheduled Castes or Scheduled Tribes or Other Backward Classes or for a woman, the officiating Sarpanch shall be elected from amongst the members belonging to the same category: Provided further that where the office of Sarpanch is reserved for a woman belonging to Scheduled Castes or Scheduled Tribes or Other Backward Classes, and there is no other woman belonging to that category who can be elected to officiate as Sarpanch, any other woman belonging to the other reserved categories may be elected to officiate as Sarpanch during the casual vacancy. (c) if the outgoing office-bearer fails to hand over any record, article, money or property of the Panchayat forthwith to his successor, the prescribed authority may by order in writing direct him to do so and on his failure to comply with such direction, the prescribed authority may proceed against him in accordance with section 92 and take necessary steps to prosecute him under section 98." The purpose of referring to the aforesaid provision is that when a vacancy occurs, it is to be filled up as soon as possible by an election in accordance with the provisions of the Act. Section 17 deals with the election of Sarpanch and Up-Sarpanch. It is not disputed at the Bar that the election is a direct one. As has been stated earlier, section 19 deals with the notification of election. If there is no notification, it cannot be said the person has been duly elected. Rule 90 of the M.P. Panchayat Nirvachan Niyam, 1995 makes provision for notification of election. It also prescribes the manner in which such election has to be notified. The said rule 90 reads as under: "90. Manner of notifying election -- The Commission shall notify or cause to be notified -(a) every election of a Panch and Sarpanch of a Gram Panchayat, by affixing a notice in Form 26A on the notice board in the office of the Gram Panchayat concerned and in the office of the Janpad Panchayat within which such Gram Panchayat is situate: (b) every election of a member of a Janpad Panchayat, by affixing a notice in Form 26-B on the notice board in the office of the Janpad Panchayat concerned and in the office of the District Election Officer; and (c) every election of a member of a Zila Panchayat, by affixing a notice in Form 26-C on the notice board in the office of the Zila Panchayat and in the office of the District Election Officer. It is to be noted here, an election petition can be filed under section 122 of the Act within thirty days from the date of which the election in question was notified. Thus, it is crystal clear, if an election is not notified, no person can be treated to be elected. He cannot be treated as a returned candidate. It is to be noted here, an election petition can be filed under section 122 of the Act within thirty days from the date of which the election in question was notified. Thus, it is crystal clear, if an election is not notified, no person can be treated to be elected. He cannot be treated as a returned candidate. This view of mine gets fortified by Full Bench decision rendered in the case of Chandrabhan Singh v. State of M.P. and others [MPHT 2001(2) 242]. If the aforesaid legal position is kept in view, it is to be understood that the election and the notification have their own significance. 9. Section 20 of the Act deals with the term of the office-bearer and curtails the term under certain exigencies. A no-confidence motion against the Sarpanch is in a separate compartment. It is to be borne in mind that the petitioner became the returned candidate after the publication of the notification. Section 20, as the language conveys, deals with the concept of first meeting and provides the term of office. The term of office is a different concept altogether. Sub-section 2 of section 20 uses the word 'officer-bearer' and their term is determinable from the date of first meeting. In my considered view, section 20 is in a different compartment. Section 21 of the Act uses language that no-confidence motion shall not lie against the Sarpanch or Up-Sarpanch within a period of one year from the date on which the Sarpanch or Up-Sarpanch enter their respective office. From the aforesaid use of the language, it is quite vivid that there can be circumstances when the Sarpanch or Up-Sarpanch would enter their respective office on different dates. Entering into office and holding office for five years from the date of first meeting are two different concepts; one determines the maximum limit of the term and the other grants an immunity to an elected person. To give a hypothetical example, if a person gets elected as a Sarpanch in a bye-election for a period of eleven months, he will be protected under sub-section (3) (i) as well as (ii) of section 21 and will enjoy both the immunities granted inasmuch as it cannot be said that it would be deemed as if he had entered his office from the first meeting which was held under sub-section 2 of section 20. Submission of Mr. Submission of Mr. Jha is that if such an interpretation is not given, the person who is elected in a bye-election would claim to remain in office for a period of five years from the date he entered into his office. This submission, in my considered opinion, does not deserve acceptance inasmuch as the sub-section 2 of section 20 clearly postulates that the office-bearers cannot hold office beyond five years from the date of first meeting. The aforesaid provision is absolutely peremptory. It does riot envisage any kind of laxity. The words 'office-bearer of the Gram Panchayat' have to be given due significance and no office-bearer, whenever is elected, can claim to remain in office beyond the specified period but that concept C1nnot be read into to the provision enshrined under section 21(3) of the Act. In a bye-election, a person may enter into office at such a stage and time when the provision will come in his aid and no-confidence motion cannot be mooted against him and he would be entitled to get the benefit of immunities provided in both the provisions as they have to be read conjointly giving due regard to the time factor stipulated therein. The said provision has a purpose. In a democracy set up when an election is held, it has its own repercussion and it has to be done after following certain paraphernalias. That apart, the Legislature in its wisdom thought it apposite to grant certain immunities to the elected person not to be ousted from the office. At this juncture, I am obligated to state that Mr. R.S. Jha, learned Deputy Advocate General expressed immense anxiety that if the no-confidence motion is not moved against the Sarpanch then he will have the absolute freedom to do such acts which may be detrimental to the interest of the Gram Panchayat. The aforesaid submission is also not of much substance inasmuch as section 40 of the Act provides for removal of office-bearer of Panchayat. As there is a statutory provision which protects the interest of the Gram Panchayat, I am of the considered view the anxiety expressed by the learned State counsel is without a foundation. In fact, a misconception. That apart as the provision enshrined under section 21 (3) is unequivocal, clear and unambiguous it is to be given a plain and simple meaning which it deserves. In fact, a misconception. That apart as the provision enshrined under section 21 (3) is unequivocal, clear and unambiguous it is to be given a plain and simple meaning which it deserves. In the case at hand, it has been asseverated that the petitioner was elected in the bye-election on 29.6.2000. The first meeting as far as the petitioner is concerned was held on 6.8.2000. This fact is not disputed by Mr. R.S. Jha who had obtained instructions from the concerned officer, Mr. Jagdish Jatiya, SDO, Jabalpur who was present in the Court at the time of hearing, At this juncture, iris apposite to refer to section 18(1) of the Act. It reads as under: "18. Handing over charge by outgoing Sarpanch – (1) The newly elected Sarpanch shall be deemed to have assumed the charge of the office with effect from the date of first meeting as provided in section 20." If the aforesaid provision is read in correct perspective, it is crystal clear that newly elected Sarpanch is deemed to have assumed the charge from the date of first meeting as provided under section 20. In this context I may proceed to state that the first meeting which had been earlier held would govern the term of the office, as office-bearers can hold office for a period of five years from the date of first meeting and no longer. In this context, I may refer to section 9 which reads as under: "9. Duration of Panchayat -- (1) Every Panchayat shall continue for five years from the date appointed for its first meeting and no longer unless sooner dissolved under this Act. (2) An election to constitute a Panchayat shall be completed -(a) before the expiry of its duration specified in sub-section (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period. (3) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under this clause (1) had it not been so dissolved." If both these provisions are read conjointly, there remains no trace of doubt that the duration of Panchayat is five years from the date of first meeting. Now the question that falls for consideration what meaning should be given to the words used 'enter their respective office' as used under section 21(3) of the Act. There is a deeming provision under section 18. The same has relevance as it deals with assumption of charge. The first meeting has connection with the term of office and term of office has to be read with the concept of duration of Panchayat. Reading the aforesaid provision in a meaningful manner, one thing alone is clear that the duration of Panchayat and term of office and continuance of office-bearers is fixed for a period of five years and no one can continue beyond that period. The period can be curtailed under certain contingencies but by no stretch of imagination it can be said a person who is elected in a bye-election would be deemed to have entered into office from the first meeting which was held much earlier. The language employed under section 21(3) is quite different and person who gets elected in the bye-election is bound by the concept of office-bearer and duration of Panchayat. The said concept is controlled as per the language employed under section 9 and 20(2) of the Act. As far as entering into office is concerned, the effective date is when he actually assumes the charge. That assumption of charge is when he participates in his first meeting or holds his first meeting. As has been stated in the case at hand, the petitioner had assumed the charge on 6.8.2001. It is not disputed by Mr. Jha that first meeting of the petitioner was held 6.8.2001. By holding of such a meeting, his term does not get extended but indubitably the computation of one year as provided under section 21(3) would commence from that date. It is not disputed by Mr. Jha that first meeting of the petitioner was held 6.8.2001. By holding of such a meeting, his term does not get extended but indubitably the computation of one year as provided under section 21(3) would commence from that date. It is not disputed at the Bar that the first meeting was held on 6.8.2000 and the no-confidence motion was moved on 30.6.2001 and the SDO, Jabalpur fixed the meeting on 7.7.2001. In view of this there remains no iota of doubt, the no-confidence motion was mooted within one year which could not have been done as envisaged under section 21(3) of the Act. 10. In view of the aforesaid, the action against the petitioner is totally unsustainable and liable to be quashed, and accordingly, I so direct. The writ petition is allowed. However, in this peculiar facts and circumstances of the case, there shall be no order as to costs.