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2001 DIGILAW 880 (MP)

Saroj v. State of M. P.

2001-11-29

DIPAK MISRA

body2001
ORDER 1. The principal issue that emerges for consideration in this writ petition preferred under Articles 226 and 227 of the Constitution of India is whether the Collector, Tikamgarh, the respondent No. 3, herein is justified in setting aside the no-confidence motion mooted against the respondent No.2, the elected Sarpanch a Gram Panchayat, Kadwan in exercise of power vested in him under section 21 (4) of M.P. Panchayat Raj Adhiniyam. 1993 (in short 'the Act'). 2. The facts as have been unfolded in the writ petition are that the respondent No. 2 was elected as the Sarpanch of the aforesaid Gram Panchayat. As there were certain allegations a number of Pancha sent requisition for convening the meeting of no-confidence motion. On the basis of the requisition the competent authority namely, Sub-Divisional Officer, Jatara convened the meeting and directed the Naib Tahsildar to conduct the meeting. It is not disputed at the Bar that the meeting was held on 19.4.2001. The total strength of the Panchayat is 15 and out of them 13 were present and 12 voted against the respondent No.2. As the no-confidence motion was passed against the respondent No.2, she approached the Collector under sub-section (4) of the section 21 of the Act. The Collector vide Annexure P-8 dated 3.9.2001 set aside the no-confidence motion. The said order is impugned in this writ petition. 3. Questioning the defensibility of the aforesaid order Mr. Z.M. Shah, learned counsel for the petitioner has submitted that the Collector has exercised the jurisdiction in a most illegal manner inasmuch as reasons ascribed by him do not stand close scrutiny making the order susceptible. The learned counsel has further submitted that the Collector has recorded many a finding which are not really germane to the issue and, therefore the order does not deserve the stamp of approval of this Court. Criticising the aforesaid order it has been canvassed by Mr. Shah that the Collector has given immense emphasis on the voting procedure. It is noteworthy to state that the members present in the meeting expressed their opinions/votes by raising their hands and as such a procedure is permissible in law and no exception could have been taken to the same. 4. Combatting the aforesaid submissions Mr. Shah that the Collector has given immense emphasis on the voting procedure. It is noteworthy to state that the members present in the meeting expressed their opinions/votes by raising their hands and as such a procedure is permissible in law and no exception could have been taken to the same. 4. Combatting the aforesaid submissions Mr. Ashish Pathak, learned counsel appearing for the respondent No 2, contended that the Collector has scrutinised the fact situation in proper perspective and taken note of the mandatory provisions as have been enshrined under the Act and M.P Panchayat (Gram Panchayat Ke Sarpand Tatha Up-Sarpanch, Janpad Panchaya Tatha Zila Pancayat at Ke Adhyaksh Tatha Upadhyaksh Ke Virudh Avishwas Prastav) Niyam, 1994 (hereinafter referred to as 'the Rules') and, therefore, the order passed by him does not warrant interference. The learned counsel for the respondent No.2 while arguing in support of the defensibility of the order impugned has propounded the proposition that when the Rule provides a particular thing to be done in particular manner it is to be done in that manner and, more so, when that relates to the arena of casting of votes. 5. To appreciate the rival submissions raised at the Bar, I feel obliged to scan all arguments and get the essence filtered. The real thrust of the matter is whether the voting pattern adopted by the Panchas in presence of the Presiding Officer who was so designated by the Competent Authority vitiates the entire proceeding that was undertaken under section 21 of the Act. I may quickly proceed to add that the other reasons which have been ascribed by the Collector are not assailed by the learned counsel and they confined their submissions to the voting pattern and therefore, I shall deal with the said aspect and need not to dwell upon other facets a they have been rightly abandoned by the learned counsel for the parties. On perusal of the impugned order it is plain a day that the members present did cast their votes by raising hands. Mr. Z.M. Shah, learned counsel for the petitioner submitted that casting of votes or expressing opinion by show of hands does not vitiate the procedure. On perusal of the impugned order it is plain a day that the members present did cast their votes by raising hands. Mr. Z.M. Shah, learned counsel for the petitioner submitted that casting of votes or expressing opinion by show of hands does not vitiate the procedure. He has placed reliance on the decision rendered in the case of Shankar Lal Patidar v. State of M.P. and others [ 1975 JLJ 386 = 1975 MPLJ 116 ] wherein J.S. Verma, J. (as his Lordship then was) dealing with the contentions raised by the learned counsel for the petitioner, therein held that the voting should be held by secret ball a instead of by show of hands and rejected the same by relying on the two decision of this Court rendered in the cases of Sojharmal Sawandas v. Municipal Council, Kharsia and others [1964 JLJ 139 = 1964 MPLJ 293] and Ramdas Surjansingh v. State of M.P. [ 1974 JLJ 330 = 1974 MPLJ 300 ] and in paragraph 5 expressed as under: " The next reason given by Shri Garg is also without merit and Shri Garg once again pointed out very fairly that the point is concluded against him by two decisions of this Court in Sojhamal Sawandas v. Municipal Council Kharsia and others and Ramdad Surjansingh v. State of M.P. and others The requirement contained in rule 7 of the Rules of entering the names of Panchas voting for and against such motion and of those remaining neutral being in the minutes of the proceedings, is sufficient to negative this argument. This contention also, therefore, fails." Mr. Shah has also drawn sustenance from a Full Bench decision rendered in the case of Prabhulal v. Gram Panchayat, Guradiya and others [ 1986 JLJ 730 ] wherein the Bench in paragraph 13 held as under: "13. Shackleton on the Law and Practice of Meetings (1977 Edn. page 49) in chapter 7 relating to voting noted that "the common law method of determining votes is by show of hands and this method applies where there an no regulations or enactments to the contrary. Shackleton on the Law and Practice of Meetings (1977 Edn. page 49) in chapter 7 relating to voting noted that "the common law method of determining votes is by show of hands and this method applies where there an no regulations or enactments to the contrary. Other methods of voting are provided for by statute, or in the case of registered bodies, by the regulations affecting them." There is no doubt and is apparent from what has been stated above, neither S. 18 of the Act nor the Rules provide for the method of voting. If in a meeting held on a motion of no confidence, the voting takes place by secret ballot, R. 6 (2) (iii) cannot be complied with and this is how then would be a non-compliance of that part of R. 6 which would result into defeating the intention of the framers of the Rules As already pointed out in Ramdas' case (supra) notwithstanding the voting having not taken place by show of hands, R. 6 (2) (iii) could be complied with. That apart, no question about the non-compliance of the relevant R. 7 (2) (iii) as has been referred in that case which is similar to Rule 6 (2) (iii) of the Rules arose for consideration in that case. Rule 6 (2)(iii) of the Rules cannot be interpreted to mean that where then is unanimity in support of the resolution of no-confidence, voting by secret ballot may be permissible, but where there is no unanimity, the voting by secret ballot would stand rejected as being contrary to law, for the reason that R. 6 (2) (iii) cannot be complied with. It being the salutary rule that in absence of any regulation or enactment to the contrary the method of determining votes is by show of hands, that method has to be adopted. Something which has been prohibited by the Act or the Rule directly or by implication, if done would invalidate the Act." In the aforesaid case reference was made to the case of Shankar Lal (supra). 6. Mr. Pathak in his turn has commended me to the decision rendered in the case of Nagaram v. Prescribed Officer and other, [1997 (2) Vidhi Bhasvar 109], wherein the learned Single Judge of this Court ha referred to sub-rule (5) of rule 5 of the Rules and held in paragraph 7 as under: "7. 6. Mr. Pathak in his turn has commended me to the decision rendered in the case of Nagaram v. Prescribed Officer and other, [1997 (2) Vidhi Bhasvar 109], wherein the learned Single Judge of this Court ha referred to sub-rule (5) of rule 5 of the Rules and held in paragraph 7 as under: "7. It is pertinent to note here that prior to the coming into force of this Niyam 1994 (which came in force 10.1.1995), the M.P. Gram Panchayat (Sarpanch Ya/Tatha Up-sarpanch Ke Viruddh Avishwas Prastava) Rules 1991 were in force wherein there was no provision providing for the manner in which such a motion of no-confidence shall be put to vote. Obviously, it was left to the discretion of the members of the Panchayat to regulate its own procedure in the matter. However, the Niyam, 1994 clearly provide that voting shall be by secret ballot. The purpose is also obvious and it is two fold, one is to maintain secrecy of ballot and the other is to prevent foul play. Needless to add that rule 5 is mandatory in its nature, and admits no discretion on the part of the members of the Panchayat to adopt any different procedure. That being so, the meeting dated 8.12.1995, in which the said no-confidence motion was passed, was vitiated being contrary to rules. It cannot be thus said that the no-confidence motion has been passed against the petitioner." 7. The question that arises for consideration is whether in view of the obtaining rules, voting by show of hands is permissible. In this regard I may reproduce the rule 5 of the Rules: "5. Conduct of meeting. – (1) The Presiding Office shall record the attendance of the members of the Panchayat present at the meeting. (2) x x x (3) The Presiding Officer shall ask any of the signatories to the notice to move the motion. . (4) After the motion is moved the moved shall first speak on the motion and thereafter other members may, if they se desire, speak on the motion. (5) On the conclusion of the debate or 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. (5) On the conclusion of the debate or 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 (v) 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. (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 (1) of section 35, as the case may be, the Presiding Officer shall declare that the motion of no-confidence is passed." On a x-ray of the aforesaid Rule it rings a bell that the manner of voting has been prescribed. In fact it is in detail. A close up of the aforesaid provision makes it clear that for the purpose of maintaining secrecy the rules have been made so that sanctity of democracy is maintained. Such a pattern of voting is necessary with the progress of democracy. The decisions which have been relied upon by Mr. Shah were prior to insertion of the aforesaid rule. In fact, at the time of rendering of the said decisions then was no rules indicating the procedure for voting. This fact finds mention in the dictum of Full Bench decision. Hence, in my humble view the decisions cited by Mr. Z.M. Shah are distinguishable an, presently not applicable because of the rules have come into vogue. 8. In fact, at the time of rendering of the said decisions then was no rules indicating the procedure for voting. This fact finds mention in the dictum of Full Bench decision. Hence, in my humble view the decisions cited by Mr. Z.M. Shah are distinguishable an, presently not applicable because of the rules have come into vogue. 8. Ex consequenti, I am inclined to agree with the view taken in the case of Nagaram (supra) and come to the irrefragable conclusion that the voting could not have been done by raising or show of hands and it should have been done by secret ballots As the Collector has set aside the no-confidence motion on this ground the order passed by him cannot be found fault with and deserves to be affirmed, being impeccable. 9. Resultantly, the writ petition, being devoid of merit, stands dismissed without any order as to costs.