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Madhya Pradesh High Court · body

2002 DIGILAW 609 (MP)

Premlata Jaiswal v. State of M. P.

2002-07-02

BHAWANI SINGH, S.L.JAIN

body2002
ORDER (Oral) Singh, C.J. -- 1. The petitioner was Sarpanch of Gram Panchayat, Khaira, Tahsil Keolari, District Seoni. 'No-confidence motion' was brought against the petitioner and she was unseated from the office of Sarpanch. Through writ petition, she challenged the action alleging that opportunity to address the House and controvert the allegation against her was not extended. She made a reference to Collector, Seoni, under section 31(4) of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (for brevity' Act of 1993'). The Collector, Seoni, rejected the reference. 2. The petitioner filed a writ petition (WP No. 2441/2001) stating that the Collector rejected the reference without enquiring into the allegation and submission made. This Court directed the Collector to hear to petitioner afresh. As such, the matter was decided against her. Again, she questioned the order alleging that the Collector did not decide the matter with regard to her right to address in the House against the motion of no-confidence in a proper manner, as per decision of this Court in Nagsai v. State of M.P. and others (1998(1) VB 163 = AIR 1998 MP 81 ). 3. While the matter was taken into consideration by this Court, the respondents took preliminary objection that the petitioner could have approached the Commissioner in revision. Since alternative remedy was not availed by the petitioner, this Court should not entertain the writ petition. For raising this objection, the respondents placed reliance on the decision reported in Kandhilal Patel v. State of M.P. ( 1999(2) JLJ 109 ). Learned counsel for the parties advanced the submissions on this objection. Without deciding the question whether alternative remedy would create absolute bar for entertaining the petition under Articles 226/227 of the constitution of India, the learned Single Judge decided to consider the question whether alternative remedy of appeal/revision was available to the aggrieved party. 4. Learned counsel for the parties advanced the submissions on this objection. Without deciding the question whether alternative remedy would create absolute bar for entertaining the petition under Articles 226/227 of the constitution of India, the learned Single Judge decided to consider the question whether alternative remedy of appeal/revision was available to the aggrieved party. 4. Precisely, the order of reference is in the following terms : "When a resolution relating to vote of 'no-confidence motion is passed by the Gram Panchayat under section 21 (1) of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993, and an application is filed before the concerned Collector under section 21 (4) of the Act and the Collector decides the dispute/controversy either way, whether the said decision can be assailed by way of an appeal or revision under the Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995, and whether the revisional authority can invoke Suo motu power of revision to rectify the view taken by the Collector on the ground that he has the power of superintendence?" Section 21 of the M.P. Panchayat Raj Adhiniyam, 1993 (for brevity ‘Act of 1993'), provides for 'No-confidence motion' against Sarpanch and Up-Sarpanch. It reads' as under: "S. 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 thereunder 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. (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. 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 terms 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 may be, 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." It is worthwhile to record that sub-section (4) of section 21 of the Act of 1993 has been brought on statue book by M.P. 2 of 1997 from 7.1.1997. 5. Section 85 of the Act of 1993 provides for power to suspend execution of any resolution passed, order issued, licence or permission granted or prohibit the performance of any act by a panchayat, for reasons to be stated in the circumstances enumerated. Section 85 reads as under : "S. 85. Power to suspend execution of orders, etc. 5. Section 85 of the Act of 1993 provides for power to suspend execution of any resolution passed, order issued, licence or permission granted or prohibit the performance of any act by a panchayat, for reasons to be stated in the circumstances enumerated. Section 85 reads as under : "S. 85. Power to suspend execution of orders, etc. -- (1) The State Government or the prescribed authority may, by an order in writing and for reasons to be stated therein, suspend the execution of any resolution passed, order issued, licence or permission granted or prohibit the performance of any act by a Panchayat, if in his opinion, -- (a) such resolution, order, licence, permission or ad has not been legally passed, issued, granted or authorised; (b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or is contrary to any law; or (c) the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely – (i) to cause loss, waste or misapplication of any money or damage to any property vested in the Panchayat; (ii) to be prejudicial to the public health, safety or convenience; (iii) to cause injury or annoyance to the public or any class or body of persons; or (iv) to lead to a breach of peace. (2) Whenever an order is made by the prescribed authority under sub-section (1), it shall forthwith and in no case later than ten days from the date of order, forward to the State Government or the Officer nominated by the State Government for this purpose, copy of the order with the statement of reasons for making it, and the State Government or the officer nominated by it, may confirm, set aside, revise or modify the order or direct that it shall continue to be in force with or without modification permanently or for such period as may be deemed fit; Provided that no order of the prescribed authority passed under sub-section (1) shall be confirmed, set aside, revised or modified by the State Government or the officer nominated by it without giving the Panchayat concerned a reasonable opportunity of being heard against the proposed order." Section 91 of the Act of 1993, provides for appeal and revision. It reads as under : "S. 91. It reads as under : "S. 91. Appeal and revision -- an appeal or revision against the orders or proceedings of a panchayat and other authorities under this Act, shall lie to such authority and in such manner, as may be prescribed." Section 95 of the Act of 1993 empowers the State Government to make rules for carrying out the purpose of this Act. Such rule may provide for all or any of the matters, which under any provision of this Act, are required to be prescribed or to be provided by Rules. 6. In exercise of power conferred by sub-section (1) of section 95 read with section 91 of the Act of 1993, the State Government framed rules known as "The Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995", after previous application as per sub-section (3) of section 95 of the Act of 1993. Rule 3 of the M.P. Panchayats (Appeal and Revision) Rules, 1995 (for brevity 'Rules of 1995'), provides for appeal and appellate authorities except where it has been otherwise provided in accordance with law or bye-laws made thereunder, an appeal will lie to Collector against the order passed by the Sub Divisional Officer, to the Commissioner against the order of the Collector, to the State Government against the order of Commissioner or the Director of Panchayats etc. Rule 5 of the Rules of 1995, provides for revision. Rule 5 of the Rules of 1995, reads as under: "R. 5. Revision -- (1)(a) The State Government, the Commissioner, the Director of Panchayat, the Collector may on its/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety or any order passed by or as to the regularity of the proceeding of the authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by, such authority and may pass such order in reference thereto as it/he may think fit: Provided that it/he shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard: Provided further that no application for revision shall be entertained against an order appealable under the Act. (b) an application for revision by any party shall only be entertained if it is on the point of law and not on facts. (2) Notwithstanding anything contained in sub-rule (1) – (i) Where proceedings in respect of any case have been commenced by the State Government under sub-rule (1), no action shall be taken by other officer mentioned in the said sub-rule in respect thereof, and (ii) Where proceedings in respect of any such case have been commenced by the Officer mentioned in sub-rule (1), the State Government may either refrain from taking any action under this rule in respect of such case until the final disposal of such proceedings by such officer or may withdraw such proceeding and pass such order as it may deem fit." Rule 6 of the Rules of 1995 deals with limitation for filing revision in 60 days from the date of the order. However, the revisional authority may admit application for revision after expiry of sixty days, if it is satisfied that there was sufficient cause for not presenting it within that period. Under Rule 7, revision is in the form of memorandum setting forth concisely the ground of objection to the order against which application for revision is preferred and it is to be accompanied by a certified copy of such order. Rule 9 of the Rules of 1995 provides for power of appellate or revisional authority, which may, after giving an opportunity to parties to be heard and after such further enquiry, if any, as it may deem necessary subject to the provisions of the Act and the Rules made thereunder, confirm, vary or set aside the order or decision appealed against. 7. The question for determination is what remedy is available to the party against whom no-confidence motion is passed by the Panchayat and Collector has also passed order on the same line under section 21 (4) of Act of 1993, meaning thereby whether it can file appeal against the order of the Collector or it can go in revision and whether in latter case, such a power can be exercised suo motu by the concerned authority or it can do so only at the instance of the parties. 8. Before answering the reference, we would like to refer to some decisions brought to our notice by the learned counsel for parties. 8. Before answering the reference, we would like to refer to some decisions brought to our notice by the learned counsel for parties. In Ramcharan Ahirwar v. Sub Divisional Officer, Jatara and others ( 1997(II) MPJR 357 ), the Court holds that resolution and order have different and distinct meaning. No appeal under Rule 3 of Rules 1995 is available to the Sub Divisional Officer against the resolution of no-confidence motion passed by the Gram Panchayat. That being so, the petitioner has no other alternative remedy except to approach this Court for redressal of grievance. With regard to availability of remedy of appeal, it is held that since the State Government/prescribed authority can suspend execution of resolution/order etc., in specified condition and order being subject to confirmation by the prescribed authority, Rule Making Authority did not make provision for appeal against the order of Panchayat purposely. This decision was rendered on July 19, 1996, when sub-section (4) was not incorporated in section 21 of the Act of 1993. In Kandhilal Patel and others v. State of M.P. and others ( 1999(2) JLJ 109 ), the Court deals with section 21(4) of the Act of 1993. It holds that finality is attached to the order of the Collector, therefore, filing of appeal is excluded but not revision under Role 5 of the Rules of 1995. In Ramnath Kaushik v. State of M.P. and others ( 1999(2) MPLJ 67 ) the Court holds that decision is not open to challenge either in appeal or in revision, since no-confidence motion cannot be classified either as an order or as a proceeding and that reference to the Collector can be made where motion of no-confidence is 'carried out'. This case and case of Shrinarayan Laxman Prasad Tiwari and others v. State of M.P. and others (1998(2) MPLJ 427) are cases where resolution of 'no-confidence motion' was questioned and not the order of Collector passed under sub-section (4) of section 21 of the Act of 1993. In Bhagwan Singh Dhakad v. State of M.P. (2000(1) MPWN 119, [SN 60], it is held that resolution of Panchayat is neither appealable nor revisable under Rules 3 and 5 of the Rules of 1995. In Bhagwan Singh Dhakad v. State of M.P. (2000(1) MPWN 119, [SN 60], it is held that resolution of Panchayat is neither appealable nor revisable under Rules 3 and 5 of the Rules of 1995. Same view has been taken in Ramlakhan Rawat v. State of M.P. and others [ 2000(1) JLJ 280 = 2000(2) MPLJ 176] holding that no appeal or revision is tenable against the resolution of the Gram Panchayat. 9. Under section 21 of the Act of 1993, no-confidence motion can be 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. While such motion is discussed, they shall not preside over the meeting which shall be presided over by an officer of the Government as the prescribed authority may appoint. The Sarpanch or Upsarpanch, as the case may be, shall have a right to speak at or otherwise to take part in the proceeding of the meeting. No-confidence motion cannot be moved against the Sarpanch or Upsarpanch within a period of one year from the date on which the Sarpanch or Upsarpanch enter their respective office and six months preceding the date on which the term of office of the Sarpanch or Upsarpanch, as the case may be, expires and one year from the date on which previous motion of no-confidence was rejected. Sub-section (4) of section 21 comes into force from 7.1.1997, the object of amendment being to provide relief where the validity of no-confidence motion can be challenged. It envisages the challenge to the validity of motion carried out by the Sarpanch or Upsarpanch within seven days from the date on which such motion was carried by referring a 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. In substance, this provision can be invoked by the Sarpanch and Upsarpanch, when the motion against them is carried out, which can be referred to the Collector, who shall decide it and decision rendered by him shall be final. In substance, this provision can be invoked by the Sarpanch and Upsarpanch, when the motion against them is carried out, which can be referred to the Collector, who shall decide it and decision rendered by him shall be final. There is no dispute that resolution of Panchayat is neither an order nor decision nor proceeding in terms of section 21 of the Act of 1993, but the decision of the Collector under sub-section (4) of section 21 of the Act of 1993 cannot be called resolution or proceedings. It is a decision, in other words, an order passed in the case referred to him. Section 85 of the Act of 1993 would not be applicable to such an order because this section deals with order, resolution etc. by the panchayat with regards to other functions and not order/decision passed by the Collector under sub-section (4) of section 21. 10. Shri R.P. Jain submitted that no further remedy is available. The Act and Rules do not provide for hierarchy of Court. As such, only option left is to approach this Court under Article 226 of the Constitution of India. We do not appreciate this submission for the reason that under various State Laws including M.P. Land Revenue Code, 1959, there is hierarchy of revenue Courts from bottom to top and vested with appellate and revisional powers in the context of the order passed by them. 11. Rule 3 of the Rules of 1995 provides for hierarchy of various authorities, which entertains the matter at initial stage and then higher authority vested with jurisdiction to deal with appeal. The Court in Kandhilal Patel case (supra) also holds that Rule 3 provides for hierarchy of various authorities. 12. Sub-section (4) of section 21 of the Act of 1993 attaches finality to the decision of the Collector. Does it mean that order passed by the Collector cannot be challenged by way of appeal or revision? Giving consideration to the question, our considered opinion is that the statute providing for finality of the decision may preclude filing of appeal but not revision/review by superior authorities. Does it mean that order passed by the Collector cannot be challenged by way of appeal or revision? Giving consideration to the question, our considered opinion is that the statute providing for finality of the decision may preclude filing of appeal but not revision/review by superior authorities. Similar view has been taken in Naumal Bros, through Gopaldas, Mandsaur v. Ali Hussain ( 1961 JLJ 450 ); Kailash Chandra v. District Judge, Bhopal (1963 JLJ 163); Suraj Prasad v. Mohanlal (1965 MPLJ, SN 26); Than Singh v. Board of Revenue and others (1967 RN 396); Indian Homeopathic Medical Association, Calcutta v. Kahanilal (AIR 1950 Cal. 163); State of Orissa v. Arakhita ( AIR 1977 SC 1194 ); Chhaganlal v. Municipal Corporation, Indore ( AIR 1966 SC 1555 ); Everest Apartment Cooperative Housing Society Ltd. v. State of Maharashtra ( AIR 1966 SC 1449 ), and Sarla Ahuja v. United India Insurance Co. Ltd. (JT 1998(7) SC 297). These decisions hold that finality clause in a statute may bar appeal, but order is open to challenge by way of revision or review and that such a provision provides for such a power to the superior authority or the Government. Rule 5 of the Rules of 1995 vests the State Government, the Commissioner, Director of Panchayat, the Collector with revisional power exercisable on its/his own motion or in the application by any party and satisfy itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of, the authority subordinate to it/him and pass such order after giving opportunity to the party having been heard, as may be considered fit. 13. Having considered the matter, we answer the reference as follows: When resolution relating to vote of no-confidence motion is passed by the Gram Panchayat under section 21 (1) of the Act of 1993 and an application is filed before the concerned Collector under section 21(4) of the Act and the Collector decides the dispute/controversy either way, the said decision cannot be assailed by way of an appeal as finality is attached to the decision of the Collector under sub-section (4) of section 21 of the Act by use of expression 'and his decision shall be final'. But such a decision can be challenged under Rule 5 of the Rules of 1995 by way of revision. But such a decision can be challenged under Rule 5 of the Rules of 1995 by way of revision. The power of revision can be invoked suo motu or on the application of any party. The revisional authority may pass such order as it/he thinks fit. 14. The reference is answered accordingly. The case be put up before the learned Single Judge for disposal on merits.