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2009 DIGILAW 105 (CHH)

GAURI BAI v. STATE OF C. G.

2009-03-24

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2009
JUDGMENT Shri Sunil Kumar Sinha, J. : 1. Challenge in this appeal is to the order dated 2nd of April, 2008 passed by the learned Single Judge of this Court in W.P.(C).No.34/2008, whereby the writ petition filed by respondents 13 to 17 was allowed and the resolution of no confidence motion was held to have been passed by the Gram Panchayat against the appellant, who was holding the post of Sarpanch. 2. The back -ground facts in a nutshell are as follows: The appellant was the elected Sarpanch of Gram Panchayat, Bhawanipur. Out of 16 members constituting the Gram Panchayat, 12 members submitted a notice of no-confidence motion against the appellant before the prescribed authority Le., the Sub-Divisional Officer, Baloda Bazar on 06.8.2007. The prescribed authority, after being satisfied, directed to convene a meeting of the members of the Gram Panchayat and fixed the date of27.8.2007 to consider the said motion. Naib Tahsildar, Palari, was appointed as Presiding Officer for the above meeting to consider the no-confidence motion against the appellant. The meeting was convened on 27.8.2007 in which all the 16 members of Gram Panchayat, including the appellant Sarpanch, participated and the said motion of no confidence was carried out with the ratio/majority of 12 : 4. Being aggrieved with the aforesaid motion carried out against the appellant, she made a reference u/s 21 (4) of the M.P (C.G) Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act') to Addl. Collector, who heard the reference and set aside the motion on the ground that Rule 3(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 Avish was Prastav) Niyam, 1994 (hereinafter referred to as the' Rules 1994') was not complied as the meeting was convened beyond the period of 15 days of the submission of the notice of the no confidence motion, therefore, passing of the no-confidence motion, against the appellant, in such meeting was bad in law. 3. The order passed in the reference on 14.12.2007 was challenged by the 5 members of the Gram Panchayat (Petitioners) in W.P(C).No.34/2008, which was allowed by the impugned order dated 02.04.2008, against which the appellant has preferred this appeal. 4. 3. The order passed in the reference on 14.12.2007 was challenged by the 5 members of the Gram Panchayat (Petitioners) in W.P(C).No.34/2008, which was allowed by the impugned order dated 02.04.2008, against which the appellant has preferred this appeal. 4. The learned single Judge has held that since no prejudice was caused to the appellant because of non-compliance of Sub-Rule (3) of Rule 3 of the Rules, 1994, the impugned order passed by the upper Collector setting aside the resolution of no-confidence motion against the appellant cannot be sustained. 5. Ms. Sunita Jain, learned counsel appearing on behalf of the appellant, has argued that the provisions of Rule 3 (3) are mandatory, therefore, noncompliance of said provision vitiates the proceedings of the Gram Panchayat, in which, the motion of no-confidence was passed against the appellant. 6. On the other hand, learned counsel for the State as also the private respondents opposed these arguments and supported the order passed by the learned single Judge. 7. We have heard the learned counsel for the parties at length and have also perused the records of the writ appeal as also the writ petition. 8. Rule 3 (3) of the Rules, 1994 reads as under: "3. Notice. – (1) xxx xxx xxx (2) xxx xxx xxx (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 dispatched by him through the Secretary of the Gram Panchayat or Chief Executive Officer of the Janpad or Zila Panchayat, as the case may be, to every member of the Panchayat concerned seven days before the meeting. " 9. In the matter of Dhumadandhin, w/o Bundsai Vs. " 9. In the matter of Dhumadandhin, w/o Bundsai Vs. State of Madhya Pradesh and others], a learned single Judge of M.P. High Court held that the aforesaid rule castes a duty upon a prescribed authority to fix the date, time and place of the meeting which shall not be more than 15 days from the date of receipt of the notice. Since it is a duty caste on the prescribed authority, the members who have given the notice for consideration of the no-confidence motion have no control over the same, therefore, the will of the members in relation to the no-confidence motion cannot be defeated on account of inaction or delayed action of the prescribed authority. Holding otherwise will lead to nullifying the wish of the members on the no-confidence motion for an act over which they have no control. The learned Judge held that Rule 3(3) operates in the field of public duty. Therefore, if nothing has been shown to demonstrate that the concerned petitioner, in any way, was prejudiced by holding of the meeting beyond a period of 15 days, the motion passed in such meeting cam10t be held to be vitiated. 10. In the matter of Bhulin Dewangan Vs. State of M P and other the Full Bench of M.P. High Court held that the general rule is that non-compliance 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 is involved and in such a case the act done will be valid even if the requirements of conditions have not been performed. In the said case, the Full Bench has taken note of the case of Dhumadandhinl (supra) and ultimately held that in every case of challenge to the proceedings of no-confidence motion either before the Collector or the High Court, it would still be open to the Collector or the High 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-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. The full Bench held that a mere non-compliance of Part-II 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 of the Act or the High 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. 11. The views taken by the M.P. High Court in above cases are also based upon the Principles of Statutory Interpretation which finds place in Para 5 of the Judgment of Full Bench, which reads as under: 5. "Use of word 'shall' in a statute is normally to be construed as mandatory but it is settled that in the context and object of the statute, it can, to effectuate the meaning of the relevant rule or law be construed as 'may'. See the following passage in Principles of Statutory Interpretation, 7 III Edition, 1999 by Justice G.P. Singh at Page 298, Syn.6 Clause (e) "The use of word' shall' raises a presumption that the particular provision is imperative, but this prima facie interference may be rebutted by other consideration such as object and scope of the enactment and the consequences flowing from such construction. There are numerous cases where the word 'shall' has, therefore, been construed as merely directory. "The word 'shall' observes Hidayatullah, J., "is'ordinary mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands", and points ofSubbarao, J., "when a statute uses the word 'shall' prima facie it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute." 12. We are in respectful agreement with the views taken by the M.P. High Court in the above cited cases and we also hold that unless it is shown that the non-compliance of Rule 3(3) of the aforesaid Rules 1994 has in fact resulted in failure of justice or has caused any serious prejudice to any of the parties, it shall not necessarily and automatically result in nullification of the whole action. The factum of causing serious prejudice or failure of justice has to be determined by the Collector or the High Court in the facts and circumstances of each case. Otherwise, generally Rule 3 (3) of the Rules 1994 would operate in the field of public duty of the prescribed authority. 13. In the present case, the learned single judge has held that the appellant has also participated in the meeting of no-confidence motion and no objections were taken by her in the meeting. Even otherwise also the appellant has not challenged the fixing of meeting beyond the period of 15 days prescribed under rule 3(3) and she took a chance but after being unsuccessful in the said meeting, she challenged the invalidity on this ground by making a reference U/S 21 (4) of the Act, 1993. In the facts and circumstances of this case, the learned single judge has, rightly held that the appellant could not make out a case that any prejudice was caused to her because of non-convening of the meeting within a period of 15 days; and, thus, she cannot challenge the motion on the said ground alone. 14. For the reasons mentioned in the foregoing paragraphs, we do not find any illegality or infirmity in the order passed by the learned Single Judge. 15. The appeal has no merits. The same is liable to be and is accordingly dismissed. 16. There shall be no orders as to costs. Appeal Dismissed.