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Madhya Pradesh High Court · body

2002 DIGILAW 568 (MP)

Ram Bhilash Patel v. State of M. P.

2002-06-24

A.K.MISHRA

body2002
ORDER 1. Petitioner seeks the relief of quashing the decision by Presiding Officer as contained in Annexure P-l holding that no-confidence motion moved against Sarpanch of Gram Panchayat Shri Ram Mani Patel was not carried by requisite majority in accordance with the provisions of section 21 of M.P. Panchayat Raj Adhiniyam, 1993 (for short 'the Act'). 2. Petitioner submits that in all 21 Panch as voted including Sarpanch and Up-sarpanch. The total votes cast in favour of no-confidence motion were 15 and the votes cast against no-confidence motion were 6. The petitioner submits that the post of the Sarpanch against who no confidence motion was moved could not be taken into consideration for arriving at requisite figure of majority of the Panchas present and voting and for the time being constituting the Gram Panchayat as per section 21 of the Act. Petitioner submits that the 'Sarpanch' against whom the no-confidence motion was moved was not a 'Panch' of the Gram Panchayat concerned since Ram Mani Patel was directly elected as Sarpanch of. Gram Panchayat Dahuli, Tahsil Churhat, District Sidhi. Petitioner submits that Gram Panchayat has been constituted of 20 Panchas and one Sarpanch and for the purpose of computing the strength of Panchas under section 21 of the Act Sarpanch has to be excluded. Thus, the no-confidence motion was carried by majority of not less than 3/4th Panchas present and voting and such majority wm more than 2/3rd of the total number of the Panchas constituting Gram Panchayat for the time being. 3. Learned counsel for respondent No.5 Ram Mani Patel submits that the submission of the petitioner is untenable. No-confidence motion was not carried out as required under section 21 of the Act as Sarpanch has to be treated as the person constituting the Gram Panchayat and he has a right to vote and his vote has to be counted for arriving at the strength as mentioned under section 21 of the Act of not less than 3/4th and more than 2/3rd of the total number of the Panch as constituting the Gram Panchayat. 4. In order to appreciate the submission, it is necessary to have a look into the definition of Gram Panchayat. Under section 2 (vii) 'Gram Panchayat' means a Gram Panchayat established under sub-section (1) of section 10. Section 10 provides for the establishment of Gram Panchayat, Janpad Panchayat and Zila Panchayat. 4. In order to appreciate the submission, it is necessary to have a look into the definition of Gram Panchayat. Under section 2 (vii) 'Gram Panchayat' means a Gram Panchayat established under sub-section (1) of section 10. Section 10 provides for the establishment of Gram Panchayat, Janpad Panchayat and Zila Panchayat. There shall be a Gram Panchayat for every village specified as a village for the purposes of this Act under section 3. Every Gram Panchayat, Janpad Panchayat and Zila Panchayat shall be body corporate by the name specified, therefor in the order under section 3 for village or notification under section 10 for Janpad Panchayat and Zila Panchayat as the case may be having perpetual succession and a common seal as per section 11. Section 13 provides for constitution of Gram Panchayat. Sub-section (1) of section 13 provides that every Gram Panchayat shall consist of elected Panchas and a Sarpanch. Section 17 deals with the election of Sarpanch and Up-sarpanch. In every Gram Panchayat there shall be a Sarpanch and an Up-sarpanch. A person who is qualified to be elected as a Panch can be Sarpanch or Up-sarpanch. Further qualifications are also prescribed. 5. Section 21 deals with a no-confidence motion against Sarpanch and Upsarpanch. Under sub-section (2) of section 21 a Sarpanch or an 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. Under sub-section (1) of section 21 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. 6. Section 44 of the Act provides the procedure of meeting and conduct of business of a Panchayat. Sub-section (2) of section 44 provides that the chairperson of a Panchayat and other members of a Panchayat whether or not choosen by direct election from territorial constituencies shall have the right to vote in the meeting of the Panchayats. 7. 6. Section 44 of the Act provides the procedure of meeting and conduct of business of a Panchayat. Sub-section (2) of section 44 provides that the chairperson of a Panchayat and other members of a Panchayat whether or not choosen by direct election from territorial constituencies shall have the right to vote in the meeting of the Panchayats. 7. In exercise of the powers conferred by sub-section (1) of section 95 read with sub-section (1) of section 44 of the Act, the State Government has framed the rules called Madhya Pradesh Panchayat (Procedure of Meeting and Conduct of Business) Rules, 1994. Under sub-rule (4) of rule 43 there shall be majority of the votes of the members present. Office bearer is not entitled to vote under rule 27 only in case he has pecuniary interest on the matter to be transacted. Rule 27 provides that no office bearer shall vote on, and take part in the discussion of any question coming up for consideration at the meeting of the Panchayat if the question is one in which he has any direct or indirect pecuniary interest whether by himself or through some' other person other than interest as a member of public. 8. Further in exercise of the powers conferred under sub-section (1) of section 95 read with sub-section (2) of section 21 of the Act, the State Government has framed the rules called 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 short 'the Rules'). Rule 3 of the Rules requires notice to be given to the prescribed authority in the form appended to the Rules of no-confidence motion against the Sarpanch or Up-sarpanch as the case may be. Such notice shall be signed by not less than one third of the total number of elected 'members' of the concerned Panchayat as per first proviso to sub-rule (1) of Rule 3. Under rule 5 procedure for conduct of meeting has been prescribed; the Presiding Officer shall record the attendance of the members of the Panchayat present at the meeting. The Presiding Officer shall ask any of the signatories to the notice to move the motion. 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. The Presiding Officer shall ask any of the signatories to the notice to move the motion. 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. 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. Rule nowhere prohibits cast of vote by Sarpanch or Up-sarpanch as the case may be and vote has to be kept 'secret' and bal10t paper has to put in bal10t box kept on the table of the Presiding Officer under sub-rule (5) of rule 5 of Avishwas Prastav Niyam. Sub-rule (5) of rule 5 of the Rules is quoted below: "(5). On the conclusion of the debate on the motion, the Presiding Officer shal1 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 shal1 affix the symbol () 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." 9. It is apparent from the aforesaid provisions that Sarpanch or the Up-sarpanch against whom no-confidence motion has been brought is having the right to speak and to cast the vote for and against the motion and the vote is secret under sub-rule (5) of rule 5. Sub-section (2) of section 44 of the Act gives the right to chairperson and other members of the Panchayat whether or not choosen by direct election from territorial constituencies shall have a right to vote in the meeting of Panchayat. Sub-sections (1) and (2) of section 44 are quoted below: "(1) Subject to the provision of this Act, the procedure of meeting and conduct of business of a Panchayat shall be such as may be prescribed. Sub-sections (1) and (2) of section 44 are quoted below: "(1) Subject to the provision of this Act, the procedure of meeting and conduct of business of a Panchayat shall be such as may be prescribed. (2) The chair person of a Panchayat and other members of a Panchayat whether or not choosen by direct election from territorial constituencies shall have the right to vote in the meeting of the Panchayats.' 10. In my opinion, section 44 has to be harmonized with section 21. Sarpanch or Up-sarpanch has to be considered as one of the Panchas for the purpose of section 21 of the Act and has to be counted for computation of the majority of not less than 3/4th of Panchas present and voting and such majority of more than 2/3rd of the total number of Panch as constituting the Gram Panchayat for the time being. 11. In my opinion, a Sarpanch has to be considered as one of the Panchas constituting the Gram Panchayat for the purpose of section 21 and once he had cast his vote for and against the motion secrecy of ballot has to be maintained under sub-rule (5) of rule 5 of A vishwas Prastav Niyams and it cannot be looked into whether Sarpanch had cast his vote in favour or against it. When a Sarpanch is having a right to cast the vote in the meeting, it has to be taken that vote has to be included in the ultimate count constituting the total number of Panchas. A Sarpanch cannot be excluded for computing the total number under section 21 of the Act. 12. In the instant case 15 Panchas voted in favour of no-confidence motion and 6 voted against it. It is not in dispute that including Sarpanch/Up-sarpanch there are 21 Panchas for the time being constituting the Gram Panchayat. Thus, the requirement of sub-section (1) of section 21 of the Act that no-confidence motion shall be taken to be passed only when it has been passed by majority of not less than 3/4th of the Panchas present and voting, such strength has to be in that case 15.75 to make 3/4th of 21. It has to be rounded off to 16. Any figure not less than 3/4th is not enough to pass resolution of motion of no-confidence. It has to be rounded off to 16. Any figure not less than 3/4th is not enough to pass resolution of motion of no-confidence. It is not disputed that if Sarpanch is counted no-confidence motion was not carried by requisite strength. Thus, in my opinion, the decision of the Presiding Officer that no-confidence motion has not been carried out as per the requirement of section 21 (1) of the Act is proper and calls for no interference. 13. Resultantly, the writ petition is devoid of merit and is dismissed. In the facts and circumstances of the case, no order as to cost.