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2003 DIGILAW 1233 (MP)

Hariyare v. State of M. P.

2003-11-12

K.K.LAHOTI

body2003
JUDGMENT Petitioner aggrieved by Annexure P-3, the application filed by the Members of Gram Sabha for recalling of the petitioner from the post of Sarpanch and by order, Annexure P-4 by SDO, Barghat, dated 3.11.2003, by which SDO has directed the Tahsildar, Barghat to hold secret voting by ballot on 13.11.2003 for recalling of the petitioner, has filed this petition. Learned counsel for the petitioner submits that the petitioner is an elected Sarpanch. On 7.5.2003 a: no-confidence motion was moved against the petitioner but the aforesaid motion failed which is' apparent from the perusal of the minutes of meeting held on 7.5.2003, Annexure P-1. Thereafter, one application, Annexure P-3 was filed by alleged Members of the Gram Sabha to the SDO, Barghat for secret voting for recalling of the petitioner from the post of Sarpanch under section21-A of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'Adhiniyam' for short). The aforesaid act of Gram Sabha has been challenged by the petitioner on the ground that before approaching the Prescribed Authority by the Members of Gram Sabha, the Gram Sabha is required to follow the procedure prescribed under the M.P. Gram Sabha (Procedure of Meeting) Rules, 2001 and until and unless a meeting is convened for the decision, no such application could be filed to the Prescribed Authority for recalling of the petitioner. Apart from this, the Prescribed Authority has not verified the signatures on the aforesaid prayer of the Members of the Gram Sabha and until and unless the Prescribed Authority satisfies himself that this application bears the signatures of Members of the Gram Sabha, no such order could be issued by the Prescribed Authority. Contending aforesaid, learned counsel for the petitioner submits that the order Annexures P-4 and application, Annexure P-3 both may be quashed. Learned counsel appearing for the State submits that procedure prescribed under section 21-A is in respect of secret voting with the prayer for recalling. For the prayer for recalling only a written request on behalf of Gram Sabha is necessary and the Prescribed Authority on the basis of the aforesaid request can initiate the aforesaid proceedings. Learned counsel appearing for the State submits that procedure prescribed under section 21-A is in respect of secret voting with the prayer for recalling. For the prayer for recalling only a written request on behalf of Gram Sabha is necessary and the Prescribed Authority on the basis of the aforesaid request can initiate the aforesaid proceedings. The only rider is that the aforesaid recalling shall not be initiated within a period of two and half years from the date on which such Sarpanch elected at the General Election enters his office or if half of the period of tenure of the Sarpanch elected in a bye-election has not expired. In the present case both the riders are not attracted. The SDO, Barghat has rightly directed the Tahsildar, Barghat for secret voting by Gram Sabha in respect of recalling the petitioner. To appreciate the arguments of learned counsel for the petitioner, it is necessary to see the provision of section 21-A(1) of the Adhiniyam, 1993, which reads as under: "21A. Recalling of office bearers of Gram Panchayat -- (1) Every Sarpanch of a Gram Panchayat shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of the members constituting the Gram Sabha within the Gram Panchayat in accordance with the procedure, as may be prescribed: Provided that no such process of recall shall be initiated unless a notice is signed by not less than one-third of the total number of members of the Gram Sabha and presented to the prescribed authority: Provided further that no such process shall be initiated -- (i) within a period of two and a half years from the date on which such Sarpanch elected at the General Election enters his office; or (ii) if half of the period of tenure of the Sarpanch elected in a bye-election has not expired." The aforesaid provision specifically provides that the process of recall shall be initiated by a signed request by the members of Gram Sabha, who will be not less than 1/3rd of the total number of the members of Gram Sabha. Before making such a request, there is no specific provision under the Act or Rules for convening a meeting to pass any. such resolution by' the Gram Sabha. Before making such a request, there is no specific provision under the Act or Rules for convening a meeting to pass any. such resolution by' the Gram Sabha. Though section 6 and 6-A of the Act provide the meeting of Gram Sabha and special meeting of the Gram Sabha, but there is nothing in the Act or in the Rules for holding such meeting for making a prayer for recalling. The aforesaid request for the secret voting is to be done for recalling of the Sarpanch by written request only and before initiating such request no such procedure is required. So far as the contention of the petitioner that no-confidence motion was moved against the petitioner only on 7.5.2003 and within a period of one year again no no-confidence motion can be moved in the garb of recalling. Needless to say that, both the provisions are different. No-confidence can be moved in the Gram Panchayat under section 21 of the Adhiniyam, while section 21-A relates to Gram Sabha constituted under section 5-A of the Adhiniyam. So far as second contention of learned counsel for petitioner that the Sub-Divisional Officer ought to have satisfied himself that the signature on the prayer of recalling of Sarpanch are genuine or not is concerned, needless to say that in this case the Sub-Divisional Officer after due satisfaction that the request has been made on behalf of 1/3rd of total number of members of Gram Sabha and was presented to the prescribed authority, has issued the notice. Prima facie satisfaction of Sub-Divisional Officer is sine. quo non. Without satisfaction the prescribed authority cannot direct for holding secret voting by ballot. In the Act or Rules no procedure has been prescribed or there is no provision for recording any satisfaction by the prescribed authority that infact such prayer is made by 1/3rd of the members of Gram Sabha or not, nor Act or Rules prescribes that before satisfaction the Sub-Divisional Officer will hold an enquiry in respect of signature of members of Gram Sabha. On the basis of application, the members present before the Sub-Divisional Officer for initiating the aforesaid action, it is the satisfaction of prescribed authority for proceeding further. It will be presumed that the prescribed "authority was satisfied with the prayer of recall, as has been initiated under the signature of 1/3rd of total number of members of Gram Sabha. On the basis of application, the members present before the Sub-Divisional Officer for initiating the aforesaid action, it is the satisfaction of prescribed authority for proceeding further. It will be presumed that the prescribed "authority was satisfied with the prayer of recall, as has been initiated under the signature of 1/3rd of total number of members of Gram Sabha. Apart from this, the aforesaid motion has to be tested at subsequent stage by secret voting. In the secret voting if majority is not in support of the process, naturally the action initiated shall fall. In the circumstances, I do not find any merit in the contention of learned counsel for petitioner that before directing secret voting on the process of recall, the Sub-Divisional Officer ought to have held an enquiry in respect of genuineness of signature of members of Gram Sabha. In the circumstances, I do not find any merit in this petition, which is accordingly dismissed with no order as to costs.