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2008 DIGILAW 97 (CHH)

AGHNURAM NISHAD v. STATE OF C. G.

2008-04-02

DHIRENDRA MISHRA

body2008
ORDER Shri Dhirendra Mishra, J. :_ 1. With the consent of the parties, the matter was heard finally. 2. The petitioners by the instant petition under Article 226 of the Constitution of India has impugned the order of Annexure P/6 dated 14.12.2007 passed by Upper Collector, Baloda Bazar, Distt. Raipur whereby the reference under Section 21 (4) of the Panchayat Raj Adhiniyam, 1993 (for brevity 'the Act of 1993') filed by the respondent No.6, Sarpanch, has been allowed and the resolution of 'No Confidence Motion' dated 27.8.2007 passed in the meeting of Gram Panchayat Bhawanipur, has been set aside. 3. The undisputed facts are that the respondent No.6 is elected Sarpanch of Gram Panchayat Bhawanipur. The 'No Confidence Motion' was submitted against her by twelve members of the Panchayat before the prescribed authority i.e. Sub Divisional Officer, Baloda Bazar, respondent No.4 herein, on 6.8.2007. The matter was posted on 13th August 2007 and on that date it was directed to convene a meeting of the members of the Panchayat on 27th August 2007. Naib Tehsildar, Palari, respondent No.5 herein, was appointed as presiding officer for the above meeting to consider the 'No Confidence Motion' against the respondent No.6. The meeting was convened on 27.8.2007, in which all the 16 members of Gram Panchayat Bhawanipur including the respondent No.6 Sarpanch participated and the presiding officer declared that the motion of No Confidence is carried out with the majority of 12 members in favour and four against out of the total 16 members of the Panchayat. 4. A reference was filed by the respondent No.6 Sarpanch against the above resolution passed against her on 27.8.2007 before the Upper Collector, respondent No.3 herein, on 25.9.2007. Initially, the reference was dismissed as barred by time, however, the writ petition preferred by the respondent No.6 was allowed and the matter was remitted back to the Upper Collector/respondent. No.3 for reconsideration of the reference after notice to all the concerned. Accordingly, the matter was again heard by the Upper Collector/respondent No. 3, who, by the impugned order, set aside the 'No Confidence Motion' with an observation that compliance of Rule 3(3) of the Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchavat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav Niyam, 1994 (for convenience 'the Rules. Accordingly, the matter was again heard by the Upper Collector/respondent No. 3, who, by the impugned order, set aside the 'No Confidence Motion' with an observation that compliance of Rule 3(3) of the Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchavat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav Niyam, 1994 (for convenience 'the Rules. 1994') is mandatory and in the instant case the notice of No Confidence Motion' was given on 6th August 2007 whereas the meeting was convened on 27th August 2008 i.e. beyond the period of 15 day and it was in contravention of the mandatory provisions of Rule 3(3) of the Rules, 1994. 5. Learned counsel for the petitioners submits that from perusal of the proceedings of ' No Confidence Motion' (Annexure P/3) it would be evident that the respondent No.6 Sarpanch was afforded an opportunity of putting up her case against the 'No Confidence Motion' and she did not take any objection that the meeting is being converted beyond the mandatory period of 15 days and therefore, a prejudice has been caused to her. All the 16 members of Gram Panchayat, Bhawanipur participated in the said meeting without any objection and cast their votes. The resolution bears the signatures of all the 16 members present in the meeting and the 'No Confidence Motion' was carried out as 12 members voted in favour of the resolution and 4 against. 6. Reliance is placed on the orders passed in the matters of Nanchi Bai Vs. State of MP. and others and Bhulin Dewangan vs. State of M.P. and other. 7. On the other hand, Shri P.P. Sahu, learned counsel appearing for the respondent No.6 Sarpanch, vehemently argued that sub-rule (3) of Rule 3 of the Rules, 1994 is mandatory. Even otherwise, from perusal of the documents annexed with the petition it would be evident that the notices were dispatched on 20th August 2007 for service on the members of the Gram Panchayat Bhawanipur for their presence in the meeting to be held on 27th August 2007 and thus, there is a non-compliance of sub -rule (3) of Rule 3, which mandates that the notices are required to be dispatched before 7 clear days of the meeting. It was further argued that though the learned Upper Collector/respondent No.3 has not assigned any reason as to what prejudice was caused to the respondent No.6 Sarpanch due to non-compliance of sub-rule (3) of Rule (3) of the Rules, 1994, however, the fact that only five members of the Panchayat have instituted this petition out of 12 members, who voted in favour of the 'No Confidence Motion', goes to show that all the members were not interested in the 'No Confidence Motion' and if one member had voted against the 'No Confidence Motion' in addition to four, it would have been defeated. 8. It is also argued that the Full Bench of the M.P. High Court, in the matter of Bhulin Dewangar1, has upheld the decision of the Division Bench in the matters of Muku Bai Vs. State ofMp'Jwherein it has been held that requirement of convening the meeting within 15 days as provided in the Rule 3(3) of the Rules, 1994 is mandatory. 9. I have heard learned counsel for the parties and perused the material available on record including the impugned order. 10. The facts are not in dispute. It is also not in dispute that learned Upper Collector/respondent No.3 allowed the reference under Section 21 (4) of the Act ofl993 holding that convening the meeting within 15 days from the date of receipt of ' No Confidence Motion', is mandatory and in the said order it has not been mentioned as to what prejudice was caused to the respondent No.6 Sarpanch. It is also undisputed that respondent No.6 Sarpanch participated in the meeting without raising any objection or pointing out any prejudice was caused to her in convening the meeting beyond the period of 15 days. 11. In the matter of Muku Bail the Division Bench of M.P. High Court considering the provisions of sub-rule (3) of Rule 3 of the Rules, 1994, has held that for the purposes of ' No Confidence Motion' requirement of convening the meeting within 15 days as provided in 'the above rule, is mandatory. 12. The Full Bench of the M.P. High Court in the matter of Bhulin Dewangan in. paragraph-15 has held thus: "15 The proceedings of the no-confidence motion or other proceedings under the Act are also assailable in this Code as Constitutional. 12. The Full Bench of the M.P. High Court in the matter of Bhulin Dewangan in. paragraph-15 has held thus: "15 The proceedings of the no-confidence motion or other proceedings under the Act are also assailable in this Code 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 dispatch of notice of the meeting to the members 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 mandatory, every non-compliance of the same need not necessarily result in nullification of the whole action. In a given situation even for non-fulfillment 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 " In the same paragraph it has been further held as under: "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 1/ 3rd of the total number of elected members as required by the first Proviso to sub-rule (I) 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 Panch as constituting the Panchayat in accordance with sub-section (1) of Section 21 of the Act. This being the substance of the provisions under the Act and the rules, a mere non-compliance 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 Article 227 of the Constitution comes to the conclusion that such non-compliance has caused serious prejudice to the affected office bearer or has otherwise resulted in failure of justice. " 13. Learned Single judge the M.P. High Court in the matter of Nanchi Bail relying upon the principles of law laid down by the Full Bench of the High Court in the matter of Bhulin Dewangan2, has held that where a meeting has not been convened within a period of 15 days from the date of notice under Rule 3(1) of the Rules, 1994 and the petitioner (Sapranch) participated in the meeting without raising any objection and the motion was carried out with majority, no prejudice has been caused to the petitioner (Sarpanch) because of non-convening of meeting within a period of 15 days. 14. In the instant case, as already pointed out in the foregoing paragraphs, the respondent No.6 Sarpanch participated in the meeting and voted without any objection, all the 16 members of the Panchayat also participated and voted in the meeting dated 27th August 2007. Learned counsel for the respondent No.6 could not point out as to what prejudice has been caused to the respondent No.6 Sarpanch by convening the meeting beyond the period of 15 days and the argument that the balance of the members of the Panchayat was so evenly poised that one vote would have materially changed the outcome of the meeting and this petition has been instituted by only five members of the Gram Panchayat, may not be construed that any prejudice was caused to the Sarpanch. 15. In view of above, since no prejudice was caused to the Sarpanch because of non-compliance of sub-rule (3) of Rule 3 of the Rules, 1994, the impugned order of the Upper Collector setting aside the resolution of No Confidence against the Sarpanch/respondent No.6 cannot be sustained. 16. In the result, the writ petition is allowed. The impugned order dated 14.12.2007 (Annexure P/6) is set aside and the resolution of Annexure P/3 is declared to be passed in accordance with law. 17. 16. In the result, the writ petition is allowed. The impugned order dated 14.12.2007 (Annexure P/6) is set aside and the resolution of Annexure P/3 is declared to be passed in accordance with law. 17. No order as to costs. Petition Allowed.