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Madhya Pradesh High Court · body

2002 DIGILAW 904 (MP)

Nirmala Yadav v. State of M. P.

2002-09-30

A.K.MISHRA

body2002
ORDER 1. Petitioner is assailing the order passed by Commissioner, Rewa Division, Rewa on 3.7.2002 (P-3) by which he has set aside the order (P-2) passed by the Collector or 14.12.2001 and has quashed the no confidence motion passed against respondent No.4 Smt. Brindavas Kumari 2. A resolution of no-confidence motion was passed against Smt. Brindavas Kumari, who was holding the post of Sarpanch of Gram Panchayat, Paliya. The no-confidence motion was moved or 11.9.2001; the prescribed authority or 9.10.2001 issued the notices to the Panchas for holding the meeting or 18.10.2001 at Primary School, Paliya Dubar at 2 p.m. In addition, Secretary of the Gram Panchayat also issued notice or 15.10.2001 to the Panchas' for meeting dated 18.10.2001. 3. In all 17 Panchas including Sarpanch constituted the Gram Panchayat for the time being out of them 16 including Sarpanch participated in the meeting held on 18.10.2001 one of the Panch remained absent. The presiding officer held that no confidence motion has been carried out by the requisite majority as prescribed under section 21 of M.P. Panchayat Evam Gram Swaraj Adhiniyam, 1993 having been passed by 3/4th of the Panch as present and voting which are more than 2/3rd for the time being constituting the Gram Panchayat which is the dual requirement under section 21 of the Act. 4. Respondent No. 4 Smt. Brindva Kumari preferred a dispute under section 21 (4) of the Act before the Collector District Rewa; Collector as per order P-2 dated 14.12.2001 held that no-confidence motion has been passed with the requisite majority; there is no infirmity in the resolution passed. The Collector recorded a finding that opportunity was given to the petitioner to speak. 5. The Collector recorded a finding that opportunity was given to the petitioner to speak. 5. Respondent No.4 preferred a revision before the Commissioner, Rewa Division Rewa; Commissioner as per order P-3 dated 3.7.2002 has set aside the no confidence motion on two grounds; firstly that the notice for convening the meeting given on 11.9.2001 as per rule 3 (3) of M.F Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwa Prastav) Niyam, 1994 it was necessary to convene the meeting within 15 days the second ground adopted by the Commissioner to annul the no-confidence motion is that though the prescribed authority sent notices to all the Panchas on 9.10.2001 for the meeting date, 18.10.2001 whereas notice was sent by the Secretary of the Gram Panchayat on 15.10.2001 for the meeting to be held on 18.10.2001 which was only three days before and the requirement under rule 3 (3) is that the Secretary should issue the notices seven days before the meeting. 6. Learned counsel for petitioner submits that in the instant case the notice of the meeting was issued by prescribed authority on 9.10.2001 before seven days In addition, the Secretary of the Gram Panchayat has issued the notices or 15.10.2001. 16 out of 17 Panchas participated in the meeting including the Sarpanch. It is not the case that the one absent Panch did not receive the notice thus, there is substantial compliance of the provision and no prejudice has been caused to the respondent No.4, thus the Commissioner has erred in law while making an interference; the no-confidence motion was validity passed by the requisite majority; the respondent No.4 having lost the confidence of requisite majority, no confidence motion could not be set aside 7. Learned counsel appearing for respondent No.4 Shri J.L. Mishra has supported the order P-3 passed by the Commissioner, Rewa Division, Rewa and contends that in view of the flagrant violation of rule 3 (3) the order passed by the Commissioner is proper and no interference is called for the notices should, have been despatched seven clear day before by the Secretary. 8. The only question for consideration is that whether in the instant case non-compliance of rule 3 (3) of the Rule has vitiated the no-confidence motion passed on 18.10.2001. 8. The only question for consideration is that whether in the instant case non-compliance of rule 3 (3) of the Rule has vitiated the no-confidence motion passed on 18.10.2001. It is not in dispute that the no-confidence motion has bee passed by the requisite majority a provided under section 21 of the Act. In a 16 Panchas were present and voted; 15 cast their votes in favour of no-confidence motion and one against it. 9. A Full Bench of this Court in Bhulin Dewangdn v. State of M.P. and others [ 2000 (2) JLJ 253 = 2001 (2) MPLJ 372 ] has considered the non-compliance of rule 3 (3) of the Rules. It has been laid down by Full Bench of this Court that requirement is only of despatch of notice before seven days not that it should be received by each and every member before seven days. It has further been laid down by the Full Bench of this Court that even though the second part of rule 3 of the Rules requiring despatch of notice of the meeting to the members is mandatory, yet in every case of challenge to the proceeding of no confidence motion either before the Collector or before the High Court, it would still be open to the Collector or the High Court to find out whether in a giver case non-compliance of any part of the rule has infact resulted in failure of justice or caused any serious prejudice to any of the parties. 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. 10. In the instant case as the notice was despatched though was required to be despatched by Secretary; was despatched by the prescribed authority prior to seven days before the meeting on 9.10.2001; in addition Secretary has also issued a notice on 15.10.2001, thus, there is no prejudice caused as the Panchas had the sufficient notice of the meeting; initial notice was despatched seven days prior by the prescribed authority under whose order meeting can be convened. 11. 11. The provision of rule 3 (3) requiring the meeting to be convened within fifteen days is to ensure that no-confidence motion is not delayed, but if the meeting is convened for consideration of no confidence motion, respondent No. 4 against whom the no-confidence motion has been passed, could not lay the grievance on that count. On the contrary the grievance should have been with the Panchas who have moved the no confidence motion that it should have been considered within fifteen days so that the matter is not delayed. By the delay in consideration of the no-confidence motion Sarpanch had additional time and it has no vitiated it and for non-compliance of this provision on which the Panchas had no control cannot nullify the no-confidence motion passed by the requisite majority on 18.10.2001. 12. With respect to the question that respondent No.4 was not allowed to speak Commissioner has not given any finding if favour of respondent No.4; Collector has found that opportunity to speak was afforded. 13. Resultantly, the writ petition is allowed. The impugned order P-3 passed by the Commissioner is quashed No-Confidence resolution and the order passed by the Collector are restored. 14. Costs on parties.