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Madhya Pradesh High Court · body

2002 DIGILAW 529 (MP)

Sukhnandan Patel v. State of M. P.

2002-05-14

A.K.MISHRA

body2002
ORDER 1. Petitioner in the instant case seeks issuance of writ of certiorari to quash the order passed by Additional Collector Annexure P-5 setting aside the no-confidence motion contained in resolution Annexure P-3 passed by Gram Panchayat Khejari Lakhroni, Tehsil patharia on 5.12.2001 which was carried on by the majority of 12 against 4 Panchas. 2. Petitioner Sukhnandan Patel was Up-Sarpanch. While he was holding the office of Up-Sarpanch of Gram Panchayat Khejari Lakhroni, Tehsil Path aria, District Damoh, a no-confidence motion was passed. The Collector is the competent authority to decide the dispute u/s 21(4) of the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the Act, 1993). Shri Prabhudayal Patel, respondent No. 2 was the Sarpanch of the Gram Panchayat of Khejar, Lakhroni against whom the no-confidence motion was passed on 5.12.2001. The petitioner and other Panchas were not satisfied with the activities of the Sarpanch Shri Prabhudayal Patel respondent no. 2, therefore, no-confidence motion was passed against him. 3. An application for requisition of meeting for consideration of no-confidence motion was made to the prescribed authority under Rule 3 of the M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Upsarpanch Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice President Ke Viruddh Avishwas Prastav) Niyam, 1994 (hereinafter referred to as 'the Rules'). The prescribed authority after satisfying about the admissibility of the notice appointed Shri Hanif Qureshi as presiding officer as per order dated 21.11.2001 Annexure P-1. The prescribed authority has issued a letter Annexure P-2 appointing Shri Hanif Qureshi as presiding officer and also mentioned the time and place where the meeting for consideration of no, confidence motion was to take place as per order dated 21.1.2001. 4. A meeting for consideration of no-confidence motion was held on 5. 12.2001 in accordance with the provisions of Rules of 1994. The motion was moved and thereafter 'the members. were allowed to speak and on the conclusion of the debate the procedure for cast of the votes was explained and then votes were- polled and counted. 12 out of 16 persons voted in favour of. no-confidence motion and 4 against it. The presiding officer held that no-confidence motion was duly carried resulting in removal of Sarpanch. 5. The respondent No. 2-Sarpanch, aggrieved by the resolution of no-confidence motion, preferred a revision petition under section 91 of the Act,- 1993. 12 out of 16 persons voted in favour of. no-confidence motion and 4 against it. The presiding officer held that no-confidence motion was duly carried resulting in removal of Sarpanch. 5. The respondent No. 2-Sarpanch, aggrieved by the resolution of no-confidence motion, preferred a revision petition under section 91 of the Act,- 1993. In the revision, violation of rule 4 of the Rules 1994 was alleged. The Addl. Collector dismissed the revision petition on 21.1.2002. as not maintainable in view of the. provisions contained in 21(4) of the Act, 1993. The order passed by Addl. Collector .was challenged in W.P. No. 500/2002 before this Court. This Court remanded the matter with the direction to treat the revision petition to be a dispute u/s 21(4) of the Act. In view of the direction given by this Court. Collector decided it afresh on 30.3.2002 as per order Annexure P-8. The Collector has set aside the resolution of no-confidence motion on 30.3.2002 on the following grounds : (1) That under rule 4 of No-Confidence Motion Rules, 1994, it was necessary to have intimated the Collector regarding appointment of presiding officer prior to 3 days of the meeting but intimation was not given to Collector. (2) The presence of the Panch as was not recorded in the resolution. (3) There was non-compliance of rule 5(3) as it does not appear from proceedings that any Panch was cal led upon to move the no-confidence motion at the time when meeting was held. (4) The Sarpanch and Upsarpanch were not given opportunity to speak. 6. Petitioner submits that the Collector ought to have appreciated that the non-compliance of the provision of Rule 4 has not resulted in the failure of justice and no prejudice has been caused to any party to the no-confidence motion due to non-compliance of the Rule 4 of the Rules of 1994, -the Rule 4 contains a provision of sending information regarding the appointment of presiding officer to the Collector and it' s a mere formality; appointment was made is not in dispute and motion of no-confidence has not been adversely affected by not sending the information to Collector and no allegations have been levelled by Sarpanch Shri Prabhudayal Patel respondent No.2 against the presiding officer. The respondent No.1 should have considered that the respondent No. 2- has misrepresented the facts and ought to have dismissed the dispute filed u/s 21(4). The respondent No.1 should have considered that the respondent No. 2- has misrepresented the facts and ought to have dismissed the dispute filed u/s 21(4). The respondent No.1 has in-the most arbitrary and illegal manner considered the various other aspects of the controversy and some how tried to justify the illegal interference on his part, the grounds mentioned in the impugned order were never raised by the respondent no. 2 in the petition. The Collector ought to have seen that the allegation levelled in the petition against the no-confidence motion is to be duly Supported by an affidavit which has not been filed by the respondent No.2. 7. Respondent No.2 in the reply contends that the instant writ petition is liable to be dismissed on the ground of suppression of material facts inasmuch as he has not filed the complete copy of "reference of dispute" made by answering respondent before the Collector Damoh. Petitioner has filed Annexure P-4 only .and has so suppressed the additional pleadings subsequently made by answering respondent. The pleadings of Annexure P-4 stood supplemented which the petitioner has completely suppressed. Since the; order impugned i.e. Annexure P-8 dated.30.3.2002 being an order passed by the Collector u/s 21(4) of the Panchayat Raj. Adhiniyam is revisable under section 91 of the Act 1993. Thus, the alternative remedy of revision against the impugned order is available to the petitioner and he has filed this. petition without exhausting the, same. Therefore, the writ petition is liable to be dismissed. Respondent No. 2, submits that he was directly elected as Sarpanch by voters of the village Panchayat and petitioner being Upsarpanch having desire of becoming in charge of the post of Sarpanch wanted to grab the post some how, Consequently an illegal attempt was made to remove answering respondent from the said post Respondent No.2 submits that the order dated 30.3.2002 is liable to be upheld because thereby the Collector Damoh has rightly set aside the so called no-confidence resolution which has never been moved as required by Rule 5(3) of the Rules, 1994 nor presiding officer ever asked any of the signatories of notice issued under Rule 3 of the Rules. For non-compliance of mandatory requirement of Rule 5(3) the so called no-confidence, motion; resolution is non est in the eye of law. Hence, the order passed by the Collector dated 30.3.2002 is legal. For non-compliance of mandatory requirement of Rule 5(3) the so called no-confidence, motion; resolution is non est in the eye of law. Hence, the order passed by the Collector dated 30.3.2002 is legal. It IS further submitted by respondent No. 2 that the impugned order is legal whereby it is held, that the no-confidence motion dated 5.12.2001 is violative of Rule 5(4) of the Rules because no opportunity to speak was given to Sarpanch nor to any Panch. Thus, prejudice was caused to respondent as he was deprived of opportunity to regain the confidence in his favour. Hence, there is no illegality In the impugned order Annexure P-8. The solitary ground raised in the writ petition that the Collector has decided the issues not, .under challenge in dispute before him is misleading one and based upon suppression of material pleading of answering respondents. It is further submitted that section 21(4) of the Act, 1993 gives jurisdiction to the Collector to decide the entire dispute regarding validity of the no-confidence motion. The word "dispute" is used by legislature instead of the terms like appeal and revision. So the intention of legislature is very clear that Collector can examine the validity of no-confidence motion as a whole and he can decide dispute which implies all the issues touching the validity of the motion whether specifically raised or not. Therefore, the ground of non-raising of issues before the Collector is misconceived, .rendering the petition without substance and so liable to be dismissed. The reliance has been placed on a decision of this Court in Kandhilal Patel and others v. State of M.P. and others [ 1999(2) JLJ 109 ], to contend that revision lies against decision of dispute U/S 21(4) by Collector. It has been contended that findings arrived at are proper and there was non-compliance of Rule 3(1), 3(2) and also that of Rule 5(3) and 5(4) of the Rules and it was open to the Collector while deciding the dispute U/S 21(4) to enter into all the aspects whether those questions were raised in the dispute filed before the Collector and the decision could be arrived at by the Collector. 8. First question for consideration is of effect of non-compliance of rule 4 of the Rules. 8. First question for consideration is of effect of non-compliance of rule 4 of the Rules. The question and effect of non-compliance of mandatory provision/rule was considered by Full Bench of this Court in Bhuli Devangan v. State of M.P. [ 2000(2) JLJ 253 = 2001(2) MPLJ 372 ], wherein it has been held that the general rule is that a mandatory provision of law requires strict compliance and the directory one only substantial. But even where the provision is mandatory, every non-compliance of the same need not necessarily result in nullification of the whole action. In the given situation even for non-fulfillment of mandatory requirement the authority empowered to take decision may refuse to nullify the action on the ground that no substantial prejudice has been caused to the party effected. 9. In Shankarlal Patidar v. State of M.P. and others [ 1975 JLJ 386 = 1975 MPLJ 116 ], their Lordships considered the question of non-compliance of provisions of public duty. The guiding principle even in cases of non-performance of a public duty is pointed out in Montreal Street Railway Company v. Normandin AIR 1917 PC 142: "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." 10. In Motilal Ramchandra v. Gram Panchayat Jamburdisarvar [1983 MPLJ Short Note 8], this Court considered validity of no-confidence motion resolution, moved against the Sarpanch of the Gram Panchayat. The Gram Panchayat consisted of 23 members at the relevant time. In the meeting 22 members were present. 18 members supported the no confidence resolution and 4 voted against it. The no-confidence resolution was carried by overwhelming majority. The Sarpanch challenged the legality of the resolution on the ground that the notice of the meeting was not served personally on him. In the meeting 22 members were present. 18 members supported the no confidence resolution and 4 voted against it. The no-confidence resolution was carried by overwhelming majority. The Sarpanch challenged the legality of the resolution on the ground that the notice of the meeting was not served personally on him. It has been held that as the non-confidence resolution was carried by an overwhelming majority, the case was not a fit one in which an interference was called for under Article 226 of the Constitution of India, even if there was some irregularity in the service of the notice personally on the petitioner as that resulted in no prejudice being caused to the Sarpanch. 11. Counsel for the petitioner has further relied upon a decision in Bal Krishan Patel v. Brijendra Patel and others [ 1985 JLJ 522 = 1985 MPLJ 332], wherein it has been held that it is the settled view of this Court that if there is substantial compliance of the provision, a motion cannot be defeated for technical reasons and it is undemocratic to keep a person on the post when he has lost majority. In Jagdish Prasad Bhunjwa v. State of M.P. and others [ 1996 JLJ 335 = 1997(1) MPLJ 512 ], this Court held that once no-confidence motion is passed, it cannot be said to be an arbitrary action simply if a directly elected Sarpanch by voters is removed by majority of the Panchas. 12. In Dhumadandhin w/o Bundsai v. State of Madhya Pradesh and others [1997(1) Vidhi Bhasvar 49 = 1997(2) MPLJ 175 ], Rule 3(3) came for consideration, question arose whether failure on part of the prescribed authority to fix the meeting within the time stipulated shall render the motion of no-confidence vitiated in the eye of law. Rule 3(3) of the Rules casts duty on the prescribed authority to call meeting within prescribed period, the members who have given the notice for consideration of the no-confidence motion, has no control over the same, resolution was upheld. 13. The non-compliance of rule 4 of the Rules which requires intimation to be given to the Collector of appointment of presiding officer has to be seen in the back drop of scheme of Rules. Collector is not a prescribed authority to convene the meeting. SDO is competent to call meeting. 13. The non-compliance of rule 4 of the Rules which requires intimation to be given to the Collector of appointment of presiding officer has to be seen in the back drop of scheme of Rules. Collector is not a prescribed authority to convene the meeting. SDO is competent to call meeting. Collector has no role to play before no-confidence motion is carried out he can only decide a dispute u/s 21(4) of the Act. It is not the case that presiding officer was not appointed duly by the prescribed authority. Competence of prescribed authority to appoint or of Presiding Officer to preside, has also not been put to question nor conduct of meeting by the presiding officer. Thus, mere non-sending the information to the Collector of appointment of Presiding Officer under rule 4, in my opinion, cannot nullify the resolution of no-confidence carried by overwhelming majority. 14. In my opinion, the will of the majority of members as required u/s 21 in relation to the no-confidence motion cannot be defeated on account of inaction or delayed action of the prescribed authority. Holding otherwise, will lead to nullifying the wish of the members on the no-confidence motion for an act over which they have no control. Thus, the first ground adopted by Collector is untenable. 15. The non-compliance of rule 5(4) has been alleged to contend that respondent No.2 was not given opportunity to speak and motion was not moved as required under Rule 5(3). Rule 5 provides thus: 5. Conduct of meeting – (1) The Presiding Officer shall record the attendance of the members of the Panchayat present at the meeting. xxx (3) 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 (V) and the member who wants to vote against the motion shall affix the symbol 'X'. 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 fulfil1s 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." 16. Rule 5(3) requires that presiding officer shall ask any of the signatory to notice to move the motion then deliberations have to be made as to no-confidence motion. Merely due to the fact that it has not been specifically recorded in the minutes that who moved the motion at the time of meeting cannot invalidate the resolution when 12 persons have moved the notice for requisitioning the meeting of no-confidence and there was deliberation made on the no-confidence motion. It is obvious that it was supported by the signatories and votes polled also show that 12 votes were in favour of no-confidence motion as soon as one support it during deliberation, one is deemed to have moved it merely form of recording resolution cannot invalidate democratic process of removal. Motion was moved and deliberation took place is clear from resolution. 17. Perusal of the resolution Annexure P-3 clearly indicates that 'Vichar Vimarsh' i.e. deliberation were made as to the no-confidence motion. It means that there was active participation of the members present and it postulates that whosoever wanted to speak for and against• motion of no-confidence was allowed an opportunity to participate. When deliberations have been made it is clear that opportunity was given and whosoever opted had an opportunity to speak. Thus, Rule 5(4) was complied with. Opportunity to speak was not denied to anyone. 18. It has also been held by Collector that presence was not mentioned by the presiding officer hence resolution is invalid. The approach of Collector is hypertechnical and impermissible. Thus, Rule 5(4) was complied with. Opportunity to speak was not denied to anyone. 18. It has also been held by Collector that presence was not mentioned by the presiding officer hence resolution is invalid. The approach of Collector is hypertechnical and impermissible. The resolution Annexure P-3 clearly records the presence of Panchas' names of 16 persons are mentioned and it is clearly mentioned that original proceedings were signed by all the 16 Panchas including Sarpanch and Upsarpanch. It is not the case set up by the outgoing Sarpanch that proceedings were not signed by the 16 Panchas nor it is the case that all of them did not take part hence Collector has gravely erred in law in making interference on the said ground. Once no-confidence motion has been passed, it cannot be lightly interfered with. 19. The next question raised by the learned counsel for the respondent No.2 is that revision lies before the Commissioner. He has pressed into service the decision of this Court in Kandhilal Patel v. State of M.P. [ (1999) 2 JLJ 109 ], in which it was held that when dispute is decided by the Collector u/s 21(4) of the Act, 1993, the revision is maintainable before the Commissioner. At the same time, learned counsel concedes that decision has been referred to a larger bench to examine whether it is correct. In my opinion, when the no-confidence motion was passed by the overwhelming majority an interference is called for in the writ jurisdiction of this Court, availability of alternative remedy, if any, is not an absolute bar to make an interference in the writ petition. This, I observe without meaning to decide that alternative remedy of filing revision is available u/s 91 of the Act, availability of which is prima facie doubtful as section 21 contains independent provision for resolving dispute, it cannot be subject to section 91 of the Act. 20. The order passed by the Collector Annexure P-8 is quashed. It is held that no-confidence motion was validly passed against Sarpanch respondent No.2. As a consequence. respondent No.2 has no right to hold the office of Sarpanch of the Gram Panchayat. In the facts and circumstances of the case, no order as to the costs.