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2007 DIGILAW 1194 (MP)

NAVAL SINGH v. COLLECTOR, KHARGONE

2007-11-20

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2007
Judgment ( 1. ) By this appeal under Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam,2005, the appellant assails the order dated 26.07.2007 passed by the learned Single Judge in Writ Petition No.4011/07, by which the said writ petition against the order of the Collector dated 10.07.2007 (Annexure P/1) has been dismissed. ( 2. ) The facts of the case relevant for the purposes of the decision of this appeal lie in a narrow compass. According to the petitioner, he was an elected Sarpanch of Gram Panchayat Ahirkheda, Tehsil Bhikangaon, Distt. Khargone consisting of total 21 members including the petitioner. It was alleged that on 15.2.2007 15 Panchas of the said Gram Panchayat moved a motion of No Confidence as provided by Rule 3 of 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. On receipt of the said proposal under Sub Rule 3 of Rule 3, after completing the formalities laid down in the said rule, the prescribed authority respondent No.3 fixed 20.8.2007 for meeting for consideration of the said No Confidence Motion. It is not disputed that in the said meeting initially all the 20 Panchas voted against the No Confidence Motion by putting cross (x) in the ballot paper and it was, therefore, announced that the said No Confidence Motion had failed. However, the Panch present started clamouring and protesting against the resolution on the ground that they were misled into believing that for supporting the No Confidence Motion, they were required to put a cross (x) and not tick (/) as laid down in Rule 5(5) of the said rules. ( 3. ) Considering that the law and order situation was worsening, respondent No.3 Presiding Officer set aside the first process of election and conducted the meeting anew for consideration of the said motion. In this meeting convened on the very day, all the Panchas present voted in favour of the No Confidence Motion by putting tick ( -/ ) on the ballet papers. It was against this motion of No Confidence, in the subsequent meeting, that the appellant preferred a dispute before the Collector in accordance with Sub Section 4 of Section 21 of the M.P.Panchayat Raj Avam Gram Swaraj Adhiniyam,1993. It was against this motion of No Confidence, in the subsequent meeting, that the appellant preferred a dispute before the Collector in accordance with Sub Section 4 of Section 21 of the M.P.Panchayat Raj Avam Gram Swaraj Adhiniyam,1993. After hearing the parties, the Collector set aside the proceedings of both the meetings held on 28.2.2007 and directed that fresh meeting be held for consideration of the No Confidence Motion. It is this order Annexure P/l to the petition, which was challenged before the learned Single Judge. Learned Single Judge has observed that there was no infirmity in the order passed by the Collector and it was apparent that Collector had adopted a fair procedure when voting was held twice, on the same day. ( 4. ) We have heard the learned counsel for the parties and perused the record. ( 5. ) The controversy involved centers round the construction, import and meaning of Sub Section 4 of Section 21 of the Act and the provision made in the rules. It would, therefore, be advantageous to first refer to the provision contained in Section 21 of the Act which reads as follows :- Section 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, shall cease to hold office forthwith. (2) Nothwithstanding 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 term 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. ( 6. ) It is not disputed that the Collector has exercised the power contained in Sub Section 4 of Section 21. The said Sub Section authorises the Collector to decide the dispute referred by the Sarpanch or Up-Sarpanch affected by the No Confidence Motion. It is, therefore, clear that the power can not be exercised at the instance of any party other than the Sarpanch and Up-Sarpanch affected by the No Confidence Motion carried successfully against him. In the present case, the occasion to file a dispute arose on account of the subsequent voting in which the No Confidence Motion moved against the Sarpanch (appellant herein), was passed. However, no steps were taken by any party to challenge the motion passed in the earlier part of the day. The question that arises for consideration is as to whether the respondent No.3 acting as a Presiding Officer could have arrogated the function to set aside the motion passed in the earlier part of the day in the first meeting held for consideration of the No Confidence Motion which, on account of voting in the first meeting, failed. The question that arises for consideration is as to whether the respondent No.3 acting as a Presiding Officer could have arrogated the function to set aside the motion passed in the earlier part of the day in the first meeting held for consideration of the No Confidence Motion which, on account of voting in the first meeting, failed. A survey of the.aforesaid rules would show that upon an application filed by not less than l/3rd of the total number of elected members of the concerned Panchayat, 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, and shall fix the date, time and place for the meeting of the Gram Panchayat, Janpad Panchayat or Zila Panchayat, as the case may be, which shall not be later than 15 days from the date of receipt of the said notice. The manner in which the members of the Panchayat shall cast vote has been laid down in Rule 5(5) which reads as under :- 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. The member who wants to vote in favour of the motion shall 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. ( 7. ) Once the manner for casting vote in favour and against is statutorily laid down, it cannot be said that the Panchayat members present in the Panchayat were misled into a belief that for voting in favour of the No Confidence they were required to put cross (x) and not tick(/). ( 8. ) This apart, Presiding Officer did not have any power to adjudicate whether the first meeting was a nullity on account of misgiving or misconception on the part of the members. ( 8. ) This apart, Presiding Officer did not have any power to adjudicate whether the first meeting was a nullity on account of misgiving or misconception on the part of the members. Under these circumstances, the subsequent meeting held by the Presiding Officer on the same date under the specious plea that the law and order situation was worsening was illegal even if it is believed that there arose a law and; order situation on account of the result of the first meeting. The Presiding Officer did not have any power either under Section 21 of the Act or the aforesaid Avishwas Prastav Niyam, 1994 to set aside the result of the first meeting and to convene another meeting for consideration of the motion. If the Panchas were aggrieved by the pressure exerted or deception practised in the first meeting for consideration of the No Confidence Motion, they were at liberty to approach such forum as was available against the said alleged illegality. ( 9. ) In the above factual matrix, we are of the considered view that the learned Single Judge has not considered the grievance of the petitioner in the context of the relevant provision of law. More so, when the Collector did not have the power to go behind the motion challenged by the Sarpanch. ( 10. ) This appeal is accordingly allowed and the order passed by the Collector Annexure P/1 to the petition is quashed. ( 11. ) Ex-consequentia the result of the meeting held subsequently in which the Motion of No Confidence was carried unanimously is quashed. However, we make it clear that the persons aggrieved by the result of the first meeting shall be at liberty to assail the same before the appropriate forum. The appeal is allowed with no orders as to costs. Appeal allowed.