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2007 DIGILAW 252 (CHH)

PILARAM DEEWAN v. STATE OF C. G.

2007-04-03

SATISH K.AGNIHOTRI

body2007
ORDER 1. By this writ petition, filed under Article 226/227 of the Constitution of India, the petitioners challenge the legality and validity of the impugned order dated 18.9.2006 passed by the Collector, Mahasamund in Revenue Case No. 34/A89/2005-06, wherein and where under, it was held that 'No-Confidence Motion', placed in the Gram Panchayat meeting held on 30.8.2006 against the respondent No.5 Sarpanch, Gram Panchayat, Dongargaon, Block Bagbahra, Tahsil & District Mahasamund was not carried out, in accordance with law. Thus, the resolution to carry out No-Confidence Motion' was declared invalid. 2. The indisputable facts in nutshell are that the petitioners are elected Panchas of Gram Panchayat, Dongargaon, Tahsil, Bagbahra, District, Mahasamund (hereinafter referred to as 'Gram Panchayat'). The respondent No.5 was elected Sarpanch of Gram Panchayat. The total number of Panchas, excluding the Sarpanch in the Gram Panchayat are 19 Panchas. The notices to hold the meeting for carrying out No Confidence Motion was despatched on 22.8.2006 (Annexure P-1 to P- 19). In the notice, it was clearly stated that Shri G.S. Sharma, Naib Tahsildar, Bagbahra would be appointed as Presiding Officer. Notice was duly received by all the Panchas, including Sarpanch well in time. 3. The respondent No.5 i.e. Sarpanch of the Gram Panchayat participated in the meeting and before No Confidence Motion' was put for the voting, the respondent No.5 availed the opportunity of addressing the meeting. Out of 19, 17 Panchas cast their votes in favour of No Confidence Motion' and 2 Panchas cast their votes against the 'No Confidence Motion'. Thus, the 'No-Confidence Motion' against the Sarpanch was carried out in the meeting held on 30.8.2006. 4. Being aggrieved and dissatisfied with the 'No Confidence Motion', the respondent No.5 preferred an appeal under Section 21 (4) of the Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Adhiniyam, 1993') before the Collector, Mahasamund. The Collector, Mahasamund after hearing the parties held that it is not clear as to whether notice was served or not. The meeting was not held under the provisions of Rule 3(3) of the Madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha UpSarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice President Ke Virudh Avishwas Prastav) Niyam, 1994 (hereinafter referred to as 'the Niyam, 1994'). The meeting was not held under the provisions of Rule 3(3) of the Madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha UpSarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice President Ke Virudh Avishwas Prastav) Niyam, 1994 (hereinafter referred to as 'the Niyam, 1994'). Accordingly, the Collector declared the meeting to consider the 'No Confidence Motion' against the respondent No.5 as invalid not being in accordance with law. 5. Being aggrieved and dissatisfied with the order dated 18.9.2006 passed by the Collector, Mahasamund, the present petitioners, who are elected Panchas of the Gram Panchayat, filed this petition seeking a writ/direction to quash the impugned order dated 18.9.2006 passed by the Collector, Mahasamund and to hold that the 'No Confidence Motion' was duly carried out against the Sarpanch. 6. Learned counsel appearing for the petitioners submits that as per the Rule 3(3) of the Niyam, 1994 the requirement of notice is despatching the notice to every member of the Panchayat concerned seven days before the meeting. In the present case admittedly, the notice was despatched on 22.8.2006 for the meeting to be held on 30.8.2006. There is clear seven days notice before the meeting was held. Learned counsel further submitted that the Collector has not considered the facts that the notice was despatched on 22.8.2006. 7. It is next contended that the Collector has not examined the requirement of Section 21 (3) of the Adhiniyarn, 1993 in its proper perspective. 8. Smt. Anju Ahuja, learned Deputy Government Advocate appearing for the respondents No.1 to 4 supported the submission made by the learned counsel appearing for the petitioner. 9. Mrs. Renu Kochar, learned Advocate appearing for the respondent No.5, per contra, made her submission in support of the impugned order, stating that the required notice of 7 days under the provisions of the Rule 3(3) of the Niyarn, 1994 was not complied with as notice was not received by the respondent NO.5 and other members. Thus, the order passed by the Collector, Mahasamund, impugned herein is perfectly valid and legal 10. I have heard learned counsel appearing for the parties and have perused the pleadings and documents appended thereto, it is evident that the notice was despatched on 22.8.2006 for the meeting to be held on 30.8.2006. 11. Thus, the order passed by the Collector, Mahasamund, impugned herein is perfectly valid and legal 10. I have heard learned counsel appearing for the parties and have perused the pleadings and documents appended thereto, it is evident that the notice was despatched on 22.8.2006 for the meeting to be held on 30.8.2006. 11. Rule 3(3) of the Niyam, 1994 read as under:- "(3) on receiving the notice under sub-rule (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." 12. It is clearly provided that 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 relevant date is the date of despatch and the date of the meeting. There should be despatch of notice before 7 clear days. In the present case, the notice was despatched on 22.8.2006 for the meeting to be held on 30.8.2006 before 7 clear days and as such, there is no infirmity in despatch of notice. 13. With regard to satisfaction of the prescribed authority about the admissibility of the notice with reference to Section 21 (3). It is beneficial to quote Section 21(3) of the Adhiniyarn, 1993. "21. No-confidence motion against Sarpanch and Up-Sarpanch. 13. With regard to satisfaction of the prescribed authority about the admissibility of the notice with reference to Section 21 (3). It is beneficial to quote Section 21(3) of the Adhiniyarn, 1993. "21. No-confidence motion against Sarpanch and Up-Sarpanch. - (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." 14. The prescribed authority i.e. Sub-Divisional Officer, Mahasamund has fully satisfied himself before appointing Shri G.S. Sharma, Naib Tabsildar, Bagbahra as Presiding Officer to hold the meeting for considering resolution of 'No Confidence Motion'. Shri Pilaram Deewan, Panch along with 15 other Panchas made an application dated 18.8.2006 under Rule 3(1) of the Niyam, 1994. The Sub-Divisional Officer after having satisfied himself with requirement of provisions of Section 21 (3) of the Adhiniyam, 1993 directed issue of notice on 2 I .8.2006 and fixed the date of hearing within 15 days from the date of receipt of the said notice. 15. The provision of Rule 3(3) of the Niyam, 1994 is clear on this point as it provides for fixation of date, time and place for the meeting should not be more than 15 days from the date of receipt of the said notice. The notice/application was received on 18.8.2006 and the date for holding the meeting was fixed on 30.8.2006, which is not more than 15 days. Thus, on facts, the prescribed authority has complied with the provisions of law as enshrined in Rule 3(3) of the Niyam, 1994 and Section 21 (3) of the Adhiniyam, 1993 in its letter and spirit. 16. The Hon'ble Supreme Court, in the case Jai Charan Lal Anal Vs. The State of U.P and others while dealing with the provisions under Uttar Pradesh Municipalities Act, 1916. 16. The Hon'ble Supreme Court, in the case Jai Charan Lal Anal Vs. The State of U.P and others while dealing with the provisions under Uttar Pradesh Municipalities Act, 1916. With regard to requirement of Section 87-A (3) of the Act, 1916 provides for clear 7 days intervention between date of despatch of notice and date of meeting observed that "the sub-section says that the District Magistrate shall send the notice not less than seven clear days before the date of the meeting and the word 'send' shows that the critical date is the date of the despatch of the notice. As the notice was sent on the 17th and the meeting was to be called on the 25th, it is obvious that seven clear days did intervene and there was no breach of this part of the section." The identical facts and provisions of law are involved in the present case. The notice Was despatched on 22.8.2006 for the meeting to be held on 30.8.2006. Thus, there was 7 clear days between the date of despatch and the date of the meeting. 17. This Court in the case of Ghanshyam Yadav Vs. Rameshwar Sahu & others (W.P. No. 6774 of 2006), decided on 5.12.2006, held that no prejudice, whatsoever is caused in any manner when the resolution was passed by overwhelming majority. Thus, 'No Confidence Motion' cannot be declared as null and void. In the present case, the position is the same as out of 19 members i.e. two third of the members constituting Panchayat, were present and cast their votes. 17 votes more than three fourth of the members present and cast their votes in favour of No Confidence Motion'. Thus, 'No Confidence Motion' was "carried out", 18. As a result and for the reasons mentioned hereinabove, the impugned order dated 18.9.2006 passed by the Collector, Mahasamund is set-aside and the 'No-Confidence Motion' placed in the Gram Panchayat meeting held on 30.8.2006 is declared as carried-out. Necessary consequences flowing from this order shall follow. 19. No order as to costs. Petition Allowed.