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2007 DIGILAW 482 (MP)

Phoola Bai v. Additional Collector, Tikamgarh

2007-04-26

DIPAK MISRA, SHUBHADA RAVI WAGHMARE

body2007
ORDER 1. The present appeal preferred under section 2 (1) of the Madhya Pradesh Uchcha Nyayalay (Khand Nyaypeeth ko Appeal) Adhiniyam, 2005 (for brevity 'the Act') is directed against the order dated 28.2.2007 passed by the learned Single Judge in WP No. 15417/2006. 2. The facts which are essential to be stated are that the respondent No.3, Bhoori Devi, was elected as Sarpanch of Gram Panchayat, Guda, Tahsil Palera, District, Tikamgarh. A no-confidence motion was moved against her under section 21 (1) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for brevity 'the Act'). The vote of no-confidence was passed against her. Being grieved by the said order Bhoori Devi preferred an appeal which was registered as a revision by the Additional Collector. The Additional Collector by order dated 16.10.2006 set aside the no-confidence motion on the ground that some persons who had voted had not actually voted against the respondent No.3 inasmuch as after the vote of no-confidence was recorded the Sub-Divisional Officer has recorded the statement of 12 persons and, therefore, it is to be presumed that 12 persons were present and voted. Quite apart from the above, the said authority also observed that elected Sarpanch was not afforded an opportunity to address the members before the voting took place and, therefore, the acceptance to vote of no-confidence is untenable. Being dissatisfied with the aforesaid a writ petition was preferred. The learned Single Judge placing reliance on the decisions rendered in the cases Nagsai v. State of M.P. and others [1998 (1) Vidhi Bhasvar 163] and Prabhulal v. Gram Pcmchayat, Guradiya [ 1986 JLJ 730 ] expressed the view that the Sarpanch was not given right to speak and, therefore, the whole proceeding is vitiated. Quite apart from the above, the learned Single Judge has also held that 12 panchas were present in the meeting of motion of no-confidence and that does not meet the requirement of section 21 of the Act and hence, the same could not have been passed. Being of this view he dismissed the writ petition. 3. Mr. V.K. Shukla, learned counsel for the appellant has raised the following contentions: (a) The learned Single Judge has erroneously placed reliance on the decisions rendered in the cases of Munni Devi (Smt.) v. Sub-Divisional Officer and others [1997 (2) Vidhi Bhasvar. Being of this view he dismissed the writ petition. 3. Mr. V.K. Shukla, learned counsel for the appellant has raised the following contentions: (a) The learned Single Judge has erroneously placed reliance on the decisions rendered in the cases of Munni Devi (Smt.) v. Sub-Divisional Officer and others [1997 (2) Vidhi Bhasvar. 181] and Muku Bai (Smt.) v. State of M.P. and others [1999 (1) Vidhi Bhasvar 4] though the ultimate ratio in the said decisions is quite different. (b) Though the language employed under section 21 (2) of the Act would clearly show that the same is mandatory but the doctrine of waiver is attracted and in the case at hand the respondent No.3 had the opportunity to speak but instead of availing the opportunity she signed the minutes of the meeting which tantamounts to waiver. (c) The finding recorded by the Additional Collector that only 12 persons were present and voted because 12 persons had given oral statement, before the Sub-Divisional Officer is neither correct nor sound for the statute does not so envisage. (d) The respondent No.3 was present during the meeting and had signed at serial number 20 and she had not raised any protest. (e) After the resolution was recorded the Tahsildar who was authorised by the Sub-Divisional Officer had put his signature and in the absence of protest it is to be presumed that the proceeding was properly recorded by the public authority. (f) The respondent No.3 had not appeared before the writ Court and despite service of 'hamdast' notice has also not appeared in this appeal and it goes a long way to show that she has really lost the confidence of the panchas. 4. Mr. Alok Pathak, learned Government Advocate for the State in pursuance of the order passed by this Court has produced records relating to no-confidence motion. 5. First we shall deal with the facet with regard to the right to speak at the meeting and doctrine of waiver. Section 21 of the Act reads as under: "21. 4. Mr. Alok Pathak, learned Government Advocate for the State in pursuance of the order passed by this Court has produced records relating to no-confidence motion. 5. First we shall deal with the facet with regard to the right to speak at the meeting and doctrine of waiver. Section 21 of the Act reads as under: "21. No-confidence motion against Sarpanch and Up-Sarpanch -- (1) On a motion of non-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 Panch as constituting the Gram Panchayat for the time being, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall cease to hold office forthwith. (2) Notwithstanding 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 non-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; (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. On a perusal of Sub-section (2) it is discernible that the Sarpanch or Up-Sarpanch as the case may be, shall have a right to speak or otherwise to take part in the proceeding of the meeting. The said provision came to be interpretd in a Full Bench decision of this Court in Bhulin Dewangan v. State of M.P. and others [ 2000 (2) JLJ 253 ] wherein in paragraph 6 it has been held thus: "6. The subject-matter dealt with in section 21 of the Act is passing of no-confidence motion against Sarpanch or Up-Sarpanch. The above mentioned office bearers hold their office by election. The law requires that if they are made to vacate their offices on loss of confidence of the other elected members, there should be a requisite majority for passing the resolution i.e., not less than 3/4th of the Panchas and the resolution should be carried by voting of more than 2/3rd of the total number of Panchas. Since the passing of no-confidence motion results in adverse consequence of the Sarpanch or Up-Sarpanch vacating the elected office, the law incorporates the principle of natural justice that the office bearer concerned should have an opportunity to participate in the motion and to speak and take part in the proceedings so as to regain the confidence of the House." 7. In the said decision in paragraph 15 it has been laid down as under:- "15. 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 of a particular person, the requirements or conditions, although mandatory, may be waived by him if no public interest are involved and in such a case the act done will be valid even if the requirement or conditions have not been performed." (Emphasis supplied) Again, it was reiterated as under:- "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 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." 8. But even where the provision is mandatory, every non-compliance of the same need not necessarily result in nullification of the whole 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." 8. This Court in Muku Bai (Smt.) (supra) has held as under:- "There are no two opinions that the right to address the House cannot be denied to such person as it is also a valuable right. Therefore, this is mandatory that such Sarpanch or Up-Sarpanch should be given a right to speak when some motion is brought against him. However, in the present case, whether such opportunity was given or not, is a question of fact and the learned Single Judge has found that the proceeding were duly signed by the appellant and she did not raise any protest and it is also found that she did not lodge any complaint that she was not permitted by the officer to speak on motion of no-confidence; therefore, no relief on this aspect can be given to the appellant. However, when majority has passed no-confidence and in democracy majority accounts, we are not inclined to interfere in this appeal and the same is dismissed." (Emphasis supplied) 9. On a perusal of the aforesaid paragraphs it is quite clear that an elected Sarpanch or Up-Sarpanch has right to speak. The provision is mandatory in nature but the same can be waived by the conduct of the party and further non-compliance of the same always need not necessarily result in nullification of the whole action. 10. In the case at hand as is evident, the meeting commenced at 2:20 p.m. on 9.5.2006. The respondent No.3 had never expressed her desire to speak. She had not raised any protest. She had put the signature. In view of the aforesaid, there can be no shadow of doubt that she had waived her right to speak. We are of the considered opinion that the principle laid down in Bhulin Dewangan (supra) will get attracted to the case at hand. 11. The next aspect relates to the facet whether the resolution is to be nullified being hit by the principle of coram non judice. We are of the considered opinion that the principle laid down in Bhulin Dewangan (supra) will get attracted to the case at hand. 11. The next aspect relates to the facet whether the resolution is to be nullified being hit by the principle of coram non judice. Section 21 (1) of the Act stipulates that a resolution is to be passed by majority of not less than three-fourth of the total number of panchas constituting the Gram Panchayat for the time being. From the record it is perceptible that total strength was 21 and 20 persons had voted. 15 votes were declared valid and five votes were declared invalid. Thus, 2/3rd of the majority, as is patent, voted against the Sarpanch. 12. On a perusal of the record and being instructed by Mr. R.K. Shrivastava the learned Government Advocate for the State submitted that statements of 12 persons as is found from the record of the Additional Collector were recorded at that time by the Sub-Divisional Officer seeking requisition of no-confidence. The same has been placed reliance upon, indubitably erroneously by the Additional Collector, since requisition for convening a meeting of vote of confidence and a meeting of no-confidence are two different things altogether. 13. In view of the aforesaid reasons, we allow the writ appeal, set aside the order passed by the learned Single Judge and quash the order passed by the Additional Collector and restore the vote of no-confidence passed against the respondent No.3, Bhoori Devi. In the facts and circumstances of the case, there shall be no order as to costs.