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Madhya Pradesh High Court · body

2004 DIGILAW 417 (MP)

Nanchibai v. State of M. P.

2004-04-29

K.K.LAHOTI

body2004
ORDER 1. The petitioner has challenged the legality and validity of no-confidence motion dated 16.9.2003 passed against the petitioner, solely on the ground that meeting was not convened as per rule 3 of M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, J anpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Viruddh Avishwas Prastav) Niyam, 1994 (hereinafter referred to as 'Rules' for short), and the resolution passed against the petitioner may be quashed. 2. Short facts for consideration in this petition are that the petitioner was elected Sarpanch of Gram Panchayat, Hatnapur, District Betul. She was elected in 2000 and was performing her duties as Sarpanch. The petitioner is by caste 'Mehra' and included in other backward class. There are total 15 panchas in Gram Panchayat, Hatnapur, out of which 11 panchas including Up-sarpanch belongs to 'Pawar' caste. On 11.8.2003, 14 panchas of Gram Panchayat, served a notice under rule 3 (1) to the Sub-Divisional Officer, Multai, showing their intention to move no-confidence motion against the petitioner on three grounds. The aforesaid application dated 11.8.2003 is on record as Annexure P-l. The Sub-Divisional Officer, on the same date, appointed Shri R.R. Goyal, Tahsildar, Multai, to convene the meeting of no-confidence motion. Shri R.R. Goyal, Tahsildar, Multai, was appointed as Presiding Officer and date of meeting was fixed as 16.9.2003. On 16.9.2003, meeting was convened and the said no-confidence motion was passed with the support of 12 votes. 2 votes were cast against the motion and one vote was cancelled. The aforesaid facts are clear from the perusal of letter Annexure P-3 sent by Tahsildar, Multai, to the Sub-Divisional Officer. As the no-confidence motion was passed against the petitioner, the petitioner was removed from the office of Sarpanch. Aggrieved by the aforesaid, petitioner has filed this petition. 3. The main contention of petitioner is that the aforesaid proceedings for convening the meeting to consider no-confidence motion were contrary to the provision of rule 3 (3) and may be quashed. In support of his contention, learned counsel for petitioner has placed his reliance on a Division Bench judgment of this Court in Mukubai v. State of M.P. and others [1999 (1) Vidhi Bhasvar 4 = 1998 (2) MPLJ 661 ] and contended that the petition may be allowed. 4. In support of his contention, learned counsel for petitioner has placed his reliance on a Division Bench judgment of this Court in Mukubai v. State of M.P. and others [1999 (1) Vidhi Bhasvar 4 = 1998 (2) MPLJ 661 ] and contended that the petition may be allowed. 4. Learned counsel appearing for State supported the proceedings and contended that in view of Full Bench judgment of this Court in Smt. Bhulin Dewangan v. State of M.P. and others [ 2000 (2) JLJ 253 = 2000 (4) MPHT 69 ], this petition has no merit and may be dismissed. The petitioner did not challenge the notice Annexure P-2 immediately on issuance of notice and participated in the proceedings. When the petitioner participated in the proceedings and no-confidence motion has been passed against the petitioner, until and unless some prejudice is shown, petitioner cannot challenge the aforesaid proceedings only on the ground that meeting was called beyond 15 days from the date of notice of no-confidence motion. 5. To appreciate the contention of learned counsel for petitioner, rule 3 (3) of the Rules may be seen, which reads as under: "(3) Notice -- (1) ............................. (2) ............................. (3) On receiving the notice under subrule (1) the prescribed authority shall satisfy himself about the admissibility of the notice with reference to section 21 (3), 28 (3) and 35 (3), as the case may be. On being thus satisfied, he shall fix the date, time and place for the meeting of the Gram Panchayat, Janapad Panchayat or Zila Panchayat, as the case may be, which shall not be more than fifteen days from the date of receipt of the said notice. The notice of such meeting specifying the date, time and place thereof shall be caused to be despatched by him through the Secretary of the Gram Panchayat or Chief Executive Officer of the Janapad or Zila Panchayat, as the case may be, to every member of the Panchayat concerned seven days before the meeting." The aforesaid rule specifically provides that on receiving the notice under sub-rule (1), the prescribed authority, who is Sub-Divisional Officer, shall satisfy himself about the admissibility of notice. After being satisfied, he shall fix the date, time and place of the meeting of Gram Panchayat, which shall not be more than 15 days from the date of receipt of said notice. 6. After being satisfied, he shall fix the date, time and place of the meeting of Gram Panchayat, which shall not be more than 15 days from the date of receipt of said notice. 6. Contention of petitioner is that the meeting fixed beyond 15 days was contrary to sub-rule (3) of rule 3, which is mandatory in nature. The meeting which was fixed after near about 35 days was illegal and entire proceedings may be quashed. The petitioner belongs to other backward class and the other Panch as who belongs to Pawar caste, got sufficient time in this regard which has caused serious prejudice to the petitioner. 7. To appreciate the contention of learned counsel for petitioner, the judgment of Full Bench in the case of Smt. Bhulin Dewangan (supra) may be seen, the Full Bench, considering the provision of rule 3, held: "The general rule is that noncompliance of mandatory requirement results in nullification of the Act. There are, however, several exceptions to the same. If certain requirements or conditions are provided by statute in the interest 0f a particular person, the requirements or conditions, although mandatory, may be waived by him if no public interests are involved and in such a case, the act done will be valid even if the requirements or conditions have not been performed: This appears to be the reason for learned C.K. Prasad, J., in Dhumadhandin v. State of M.P. [1997 (1) Vidhi Bhasvar 49] which was followed by R.S. Garg, J., in Mahavir Saket v. Collector, Rewa [1998 (1) JLJ 113] for ho]ding that mere non-compliance of first part of the rule in fixing a meeting beyond the prescribed days of the motion of no-confidence would not invalidate the whole proceedings. In case of Dhumadhandin (supra), the Sarpanch did not question the validity of the notice calling the meeting of no-confidence and, in fact, had taken chance by facing the motion. R.S. Garg, J., in Mahavir Saket (supra) placed reliance on the decision of C.K. Prasad, J., in Dhumadhandin (supra) to uphold the passing of the no-confidence motion in the adjourned meeting as in the meeting called within the prescribed fifteen days the Presiding Officer was not available. Sub-section (4) of section 21 permits reference of a dispute to the Collector by Sarpanch or Up-Sarpanch against whom a notice of no-confidence motion had been passed. Sub-section (4) of section 21 permits reference of a dispute to the Collector by Sarpanch or Up-Sarpanch against whom a notice of no-confidence motion had been passed. The proceedings of the no- confidence motion or other proceedings under the Act are also assailable in this Court as Constitutional Court under Article 227 of the Constitution of India. As has been construed by us, even though second part of the rule requiring despatch of notice of the meeting to the member is mandatory, yet in every case of challenge to the proceeding of no-confidence motion either before the Collector or this Court, it would still be open to the Collector or this Court to find out whether in a given case, non- compliance of any part of the rule has in fact resulted in any failure of justice or has 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 mandotory, every non-compliance of the same need not necessarily result in nullification of the whole action. In a given situation, even for non-fulfilment of mandotory requirement, the authority empowered to take a decision may refuse to nullify the action on the ground that no substantial prejudice had been caused to the party affected or to any other party which would have any other substantial interest in the proceeding. This Court under Article 227 of the Constitution has also a discretion not to interfere even though a mandatory requirement of law has not been strictly complied with as thereby no serious prejudice or failure of justice has been caused. This is how various Single Bench decisions in which even after finding some infraction of the second part of rule 3 (3) of the Rules of 1994, the resolution of no-confidence motion passed was not invalidated on the ground that no substantial prejudice thereby was caused to the affected parties. The intention of the Legislature has to be gathered from the provisions contained in section 21 and the rule 3 (3) framed thereunder. The provisions do evince an intention that a meeting of the no-confidence motion be called within a reasonable period of not later than 15 days and every member has to be informed of the same seven days in advance. The provisions do evince an intention that a meeting of the no-confidence motion be called within a reasonable period of not later than 15 days and every member has to be informed of the same seven days in advance. A notice of no-confidence motion is required to be moved by not less than 1I3rd of the total number of elected members as required by first Proviso to sub-rule (1) of rule 3 and can be lawfully carried by a resolution passed by majority of not less than 3/4th of the Panchas present and voting and such majority has to be more than 2/3rd of the total number of Panchas constituting the Panchayat in accordance with subsection (1) of section 21 of the Act. This being the substance of the provisions under the Act and the Rules, a mere noncompliance of second part of sub-rule (3) would not in every case invalidate the action unless the Collector, while deciding the dispute under sub-section (4) of section 21, or this Court in exercise of its supervisory jurisdiction under Art. 227 of the Constitution, comes to the conclusion that such noncompliance has caused serious prejudice to the affected office bearer or has otherwise resulted in failure of justice." Though in Muku Bai (supra) the Division Bench of this Court held that the aforesaid provision is mandatory', but when the meeting was convened beyond 35 days, petitioner ought to have challenged the aforesaid notice before the meeting, but once the meeting was convened and petitioner participated in the meeting, she cannot challenge the notice which was issued contrary to the provision of sub-rule (3) of rule 3. The Full Bench has categorically held that to assail the aforesaid notice, petitioner has to show that some prejudice was caused to the petitioner. 8. From the perusal of notice of no-confidence motion Annexure P-l, it is apparent that 14 Panchas sent the notice and submitted it to Sub-Divisional Officer. The endorsement on the notice shows that this notice was presented by Lakhanlal, Up Sarpanch, along with 13 Panchas to the Sub-Divisional Officer. This means that 14 Panchas personally presented this notice for convening the meeting of no-confidence motion against the petitioner. There after, the meeting was convened on 16.9.2003, though beyond 15 days from the date of notice, but petitioner did not raise any objection before the meeting and participated in the meeting. This means that 14 Panchas personally presented this notice for convening the meeting of no-confidence motion against the petitioner. There after, the meeting was convened on 16.9.2003, though beyond 15 days from the date of notice, but petitioner did not raise any objection before the meeting and participated in the meeting. In the meeting 12 Panchas supported the no-confidence motion and only 2 Panchas opposed the no-confidence motion. This shows that the no-confidence motion was moved by the majority of more than 2/3rd members and the resolution was passed with majority. The sole prejudice which has been shown by the petitioner is that petitioner belongs to backward class and that 11 Panchas belongs to 'Pawar' caste, will not be a ground to assail the aforesaid resolution. This situation was more worse on 11.8.2003 when 14 Panchas submitted their application to the Sub-Divisional Officer in writing, desiring to move a motion of no-confidence against the petitioner. Thereafter, in the meeting, 12 Panchas supported the aforesaid motion. In these circumstances, it cannot be said that some prejudice was caused to the petitioner because of non-convening of meeting within a period of 15 days. The Full Bench, while considering this aspect, held that the prejudice has to be shown by the affected person for non-convening the meeting within a period of 15 days from the date of notice. But in this case, nothing could be shown by the petitioner in this regard; contrary to it, petitioner participated in the meeting without any protest. 9. In these circumstances, I do not find any merit in this petition, it is dismissed with no order as to costs.