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2007 DIGILAW 884 (MP)

RAMESH SONI v. STATE OF M. P.

2007-08-14

ABHAY M.NAIK

body2007
Judgment ( 1. ) SHORT facts leading to the petition are that an election of Gram panchayat, Bhanderi, Janpad Panchayat Baihar, Tahsil Baihar District Balaghat was conducted in the year 2005. After having been elected on the post of sarpanch, respondent No. 5 took over the charge. On 11-11-2006, a notice for No confidence Motion was given to the prescribed authority who convened a meeting on 27-11-2006. No Confidence Motion was moved successfully since 15 out of 17 Panchas voted in favour of no confidence. Respondent No. 5 challenged the validity of the motion by referring the dispute to the Collector, balaghat who vide impugned order dated 4-4-2007 cancelled the same on the ground that the meeting for no confidence was not convened within 15 days from the receipt of notice dated 11-11-2006. ( 2. ) AGGRIEVED by the aforesaid, the present writ petition has been preferred by the petitioner without availing the alternative remedy of revision. ( 3. ) AN objection has been raised by the respondents that the order of collector is revisable under Rule 5 of M. P. Panchayats (Appeal and Revision) Rules 1995. Reliance has been placed on the Division Bench decision of this Court in the case of Premlata Jaiswal vs. State of M. P. and others, 2002 (5) MPLJ 522. ( 4. ) PER contra, Ms. Verma contended that despite availability of alternative remedy of revision, a writ petition against the impugned order is well maintainable, in view of the law laid down by the Division Bench of this Court in the case of Prabhu Dayal Patel vs. State ofm. P. and another, 2003 (2) MPLJ 29 . It is almost settled that despite alternative remedy a writ petition may be preferred directly:- (i) where the Court or the Tribunal lacks inherent jurisdiction; or (ii) when a writ is for enforcement of fundamental rights; or (iii) there is a violation of principle of natural justice; or (iv) where vires of the Act is in question. I may profitably refer to catena of decisions of the Apex Court on the point including decisions in the cases of L. K. Verma vs. HMT Ltd. and another, (2006) 2 SCC 269 , Whirlpool Corporation vs. Registrar of Trade Marks, (1998)8 SCC 1 ( 5. I may profitably refer to catena of decisions of the Apex Court on the point including decisions in the cases of L. K. Verma vs. HMT Ltd. and another, (2006) 2 SCC 269 , Whirlpool Corporation vs. Registrar of Trade Marks, (1998)8 SCC 1 ( 5. ) IN the instant case, obviously, no confidence motion could be challenged by referring the dispute to the Collector under section 21 (4) of M. P. Panchayat raj Avam Gram Swaraj Adhiniyam, 1993 who had requisite jurisdiction to pass an order. Further, he has passed the impugned order treating the provisions of rule 3 (3) of M. P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, janpad Panchat Tatha Zila Panchayat Ke President Tatha Vice President Ke virudh Avishwas Prastav) Niyam, 1994 (hereinafter referred to as the "niyam 1994" for convenience), as mandatory. This provision has already been held mandatory by the Division Bench of this Court in the case of Muku Bai vs. State of M. P. and others, 1998 (2) MPLJ 661 . Division Bench decision has been approved by the Full Bench of this Court in the case of Bhulin Dewangan vs. State of M. P. and others, 2001 (2) MPLJ 372 . ( 6. ) THE mandatory extent of the provision could be relaxed only if it could be shown that no prejudice was caused to the party complaining. In the impugned order, no such argument seems to have been advanced about absence of prejudice. This being so, it cannot be said that the impugned order has been passed in violation of any mandatory statutory provision. Violation of principle of natural justice has also not been alleged by the petitioner. Lastly, it cannot be said that the impugned order causes breach of fundamental right. Thus, the petitioner is not found justified in preferring the writ petition directly without availing the remedy of revision which is available under Rule 5 of M. P. Panchayats (Appeal and Revision) Rules 1995. ( 7. Lastly, it cannot be said that the impugned order causes breach of fundamental right. Thus, the petitioner is not found justified in preferring the writ petition directly without availing the remedy of revision which is available under Rule 5 of M. P. Panchayats (Appeal and Revision) Rules 1995. ( 7. ) AS regards reliance of the petitioner on the decision of Prabhu Dayal patel (supra), it may be seen that this Court has observed that writ petition is maintainable despite the fact that alternative remedy is available when in the facts and circumstances of the case, for hyper technical reasons, the resolution of no-confidence motion is nullified by the Collector and allowed a person to occupy office, despite having been thrown out by no-confidence motion. In the instant case the impugned order is not found to have been passed in violation of mandatory provisions and further cannot be said to have been passed on hyper-technical reasons. ( 8. ) SINCE the petition has been admitted, an anxious consideration has been given on merits. Admittedly, the notice for convening a meeting for no-confidence motion was received by the prescribed authority on 11-11-2006. Under sub-rule (3) of Rule 3 of Niyam 1994, the prescribed authority on receiving a notice is required to fix the date, time and place for meeting of Gram panchayat for consideration of no confidence motion which shall not be more than 15 days from the date of receipt of the said notice. This provision has been construed as mandatory in the case of Muku Bai (supra ). However, it has been observed by the Division Bench that the meeting could be adjourned for the reasons beyond control. In the present case, the meeting was not adjourned but was itself fixed on a date beyond 15 days from the date of receipt of notice. In muku Bai case (supra) the meeting was convened after 15 days, contrary to the requirement of sub-rule (3) of Rule 3 but this Court declined to interfere as the petitioner in Muku Bai case (supra) had already lost majority. This is not the situation in the present case. In muku Bai case (supra) the meeting was convened after 15 days, contrary to the requirement of sub-rule (3) of Rule 3 but this Court declined to interfere as the petitioner in Muku Bai case (supra) had already lost majority. This is not the situation in the present case. In the present case the meeting having been called beyond 15 days has itself been held to be illegal by the learned Collector for violation of mandatory provision contained under sub-rule (3) of Rule 3 and this court is being expected to interfere in the impugned order without availing the alternative remedy on the ground that no prejudice was caused to the respondent no. 5 on account of his participation in the meeting for no confidence. From the impugned order it seems that the ground that the respondent No. 5 participated in the meeting of no confidence motion and has not suffered any prejudice on account of calling the meeting beyond 15 days was not agitated. In the absence of any such point having been raised, the Collector, Balaghat is not found to have ex facie committed any wrong in cancelling the no confidence motion having been passed in a meeting held in violation of mandatory provision of sub-rule (3) of rule 3. In the Full Bench decision of this Court in the Case of Bhulin Dewangan (supra), learned Full Bench was dealing with the question whether non-compliance of the second part of sub-rule (3) of Rule 3 of the Rules of 1994 would as a necessary corollary invalidate the proceedings held in the meeting called for passing the no confidence motion. Learned Full Bench further observed "as has been construed by us, even though second part of the rule requiring dispatch 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. 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 noncompliance of the same need not necessarily result in nullification of the whole action. In a given situation even for non-fulfilment of mandatory 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. " ( 9. ) THUS, the petitioner was expected and required to raise the ground before the Collector about absence of prejudice for want of calling the meeting within 15 days from the date of notice. This point having not been raised before the collector, may, if, advised be raised in the revision which may be preferred under rule 5 of Panchayats (Appeal and Revision) Rules, 1995. Causing of prejudice/no prejudice is a factual aspect which needs to be determined for adjudication of the controversy involved in the writ petition. This being so, it is always desirable for the petitioner to prefer a revision under the aforesaid rules and the writ petition preferred directly before this Court without availing the alternative remedy is not found to be maintainable in view of the Apex Court decision in the case of State Papers Mills vs. State of U. P. (2006) JO SCC 201. ( 10. ) IN the result, this Court in view of the aforesaid discussion, declines to interfere in the impugned order in exercise of jurisdiction under Article 227 of the Constitution. However, a liberty is granted to the petitioner to prefer revision under Rule 5 of Panchayat (Appeal and Revision) Rules 1995. It is further, directed that in case, if, the revision application is preferred within 15 days from the date of this order, Revisional Authority would decide the matter without insisting upon the question of limitation. ( 11. ) CERTIFIED copy marked as Annexure P/7 may be returned to the learned counsel for petitioner after retaining a true attested copy of the same on record. ( 12. ) WRIT petition, accordingly, stands disposed of in the aforesaid manner. No order as to costs. Order accordingly.