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2001 DIGILAW 942 (MP)

Vijay Jamre v. State of M. P.

2001-12-12

A.M.SAPRE

body2001
ORDER 1. The decision rendered in this writ shall govern the disposal of other connected petition being W.P. No. 648/2001 (Smt. Tarabai v. State of others) as in both petitions, common issue of law is involved. 2. The facts of the writ are simple and are not in dispute. 3. Petitioner is an elected Sarpanch of village Panchayat Rewja in tahsil Rajpur. 4. Invoking rule 3 (3) of M.P. Panchayat Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Viruddh Avishwas Prastav) Niyam, 1994 (referred to as 'Rules'), the elected members of the Gram Panchayat brought a no-confidence motion against the petitioner by issuing a notice in prescribed form to prescribed authority. It is dated 2.7.2001 (Annexure P-1). 5. The prescribed authority then, by Annexure P-3 dated 17.7.2001, issued a notice to all members including petitioner, fixing a meeting for 28.7.2001 for discussion of no-confidence move. It is this notice fixing the meeting for 28.7.2001 which is impugned in this writ by the petitioner. 6. The challenge to impugned notice Annexure P-3 is only on one ground that it is issued in breach of rule 3 (3) ibid. 7. Heard Shri Anil Trivedi, l/c for the petitioner and Shri P. Verma, GA for the State-respondents. 8. L/c for the petitioner, placing reliance on the decision reported in the case of Mukubai v. State of M.P. [1999 (1) Vidhi Bhasvar 4 = 1998 (2) MPLJ 661 ] and later approved by Full Bench decision rendered in the case of Bhulin Dewangan v. State of M.P. [(2002) 2 JLJ 253], contended that the issue on the question sought to be urged by him in this petition no longer remains res integra and stands answered in favour of petitioner by the aforementioned two decisions. L/c urged that in order to consider the no-confidence motion in a validly constituted meeting, it is obligatory, rather mandatory, on the part of the prescribed authority to fix the meeting within 15 days from the date on which he• received the notice from the elected member in the prescribed form. L/c pointed out that since in this case, the notice in prescribed form was received by the prescribed authority on 2.7.2001 and hence the meeting to consider no-confidence motion should have been fixed within 15 days from 2.7.2001, i.e., on or before 17.7.2001 but not on any other later date. L/c pointed out that since in this case, the notice in prescribed form was received by the prescribed authority on 2.7.2001 and hence the meeting to consider no-confidence motion should have been fixed within 15 days from 2.7.2001, i.e., on or before 17.7.2001 but not on any other later date. It was urged that since in this case, admittedly the meeting was fixed for 28.7.2001 and hence it is without jurisdiction being contrary to law laid down by this Court. 9. In reply, l/c for the respondent defended the impugned notice. 10. Having heard the l/c for the parties and having perused the record of the case, I am satisfied that this petition has to be allowed and impugned notice Annexure P-3 (dated 17.7.2001) has to be quashed. 11. In fact, as rightly argued by the l/c for the petitioner, the issue involved in this writ is squarely covered by the two decisions of this Court referred supra. This question had come up for consideration in the case of Mukubai (supra) before the Division Bench to decide the cleavage of opinion expressed by two Single Benches. In one case it was held that compliance of rule 3 (3) is directory whereas in other case it was held it to be mandatory. Eventually, the Division Bench in Mukubai's case resolved the conflicting view and held that compliance of rule 3 (3) is mandatory and thus held that meeting must be fixed within 15 days from the date of receiving of notice by the prescribed authority. This is what was held in para 7 of Division Bench: "We have bestowed our best of consideration on this provision and we are of the opinion that 15 days notice has to be construed that he shall fix the date, time and place for meeting which shall not be more than 15 days from the date of receipt of the said notice, meaning thereby that it is mandatory because the word 'shall' has been used directing the prescribed authority that he shall call meeting within 15 days from the date of receipt of the notice." 12. Again in para 9 their Lordships ruled : "Therefore, we hold that under rule 3 (3), the convening of meeting within 15 days is a must, it is mandatory and if the meeting which is convened within 15 days could not proceed because of the reason beyond control of the prescribed authority, it can be adjourned and the bar of rule 3 (3) will not come in the way." 13. The aforesaid view was upheld by the Full Bench in the case of Bhulin (supra) as is clear from para 17 of the decision: "Consequent to discussion aforesaid, we respectfully approve the Division Bench decision in Mukubai v. State of M.P. [1999 (1) Vidhi Bhasvar 4 = 1998 (2) MPLJ 661 ], Mahesh Pd. Choudhary v. State of M.P. [ 1997 (2) JLJ 397 ]. We also find no conflict inter se in the decisions in Srinarayan Tiwari v. State of M.P. [ 1998 (1) JLJ 124 ] and Sharda Bai Khatik v. State of M.P. [ 1998 (1) JLJ 399 ] (both decided by Hon. C.K. Prasad, J.)." 14. Accordingly and applying the aforesaid law laid down, the impugned notice cannot be upheld and hence deserves to be set aside because it does not fix the meeting within 15 days from 2.7.2001 (i.e., the date on which the notice was received). 15. Petition thus succeed and is allowed, impugned notice dated 17.7.2001 (Annexure P-3) is quashed by writ of certiorari. The authority is however, free to issue fresh notice keeping in view the law laid down and explained supra. No costs.