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Madhya Pradesh High Court · body

2009 DIGILAW 220 (MP)

Santosh Kumar Ahirwar v. State of M. P.

2009-02-12

A.K.MISHRA, SUSHMA SHRIVASTAVA

body2009
ORDER Mishra, J. -- 1. The writ petition has been preferred by the petitioner aggrieved by action of SDO in not initiating the proceedings for recall of. Sarpanch under section 21-A of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter refered to as Adhiniyam, 1993) and dismissal of appeal by the Collector. 2. Petitioner is a Sarpanch of Gram Panchayat Nayagaon District Panna. A motion for recall of Sarpanch was moved on 10.9.2007 which was signed by 987 membrs of Gram Sabha. Collector authorized respondent No.2, respondent No.2 appointed committee consisting of 3 members to submit report. Report was submitted by the Committee that Secretary was not available as such allegation made could not be verified. It was not possible to verify the signatures of 981 persons on the spot, there was possibility of dispute in the village, hence report was submitted by the Committee. The SDO for the purpose of verification directed that the persons who have signed the requisition for recall should keep themselves present in the office of SDO and file their affidvits in support thereof. Order was issued on 4.10.2007. It appears that 217 persons' signatures were obtained on the register by the SDO in support of motion for recall. The SDO opined that as one third persons did not turn up, hence proposal to initiate the proceedings for recall was rejected. Against the order, an appeal was preferred before the Collector, same has been dismissed vide order (P-7) dated 11.3.2008. Petitioner has submitted that the action is illegal and arbitrary. Earlier also motion for recall was moved which was not put for consideration. The procedure followed for the purpose of verification of the signatures was not proper. It was not proper for the SDO to call 980 persons to his office and ask them to file the affidavits. Consequently miscarriage of justice has taken place. 3. The stand of the respondents No.1 to 3 in their return is that verification of one third members could not be made consequently the satisfaction reached by the SDO is proper. The officer on probation could also act as SDO. The signatures of the villagers could not be verified in the village as there was unrest in the village as such one third members of the village were advised to come to the office of the SDO for the purpose of verification vide notice (R-2) dated 4.10.2007. 4. The officer on probation could also act as SDO. The signatures of the villagers could not be verified in the village as there was unrest in the village as such one third members of the village were advised to come to the office of the SDO for the purpose of verification vide notice (R-2) dated 4.10.2007. 4. Respondent No.4 in his separate return has supported the action taken by the SDO and by the Collector. 5. Shri R.K. Samaiya, learned counsel appearing for the petitioner has submitted that procedure adopted was illegal and contrary to the decision of this Court in State of M.P. and another v. Manorama Gour [ 2005(2) JLJ 339 = 2005(2) MPLJ 323 ], and Hariyare v. State of M.P. and others [2004(11) MPWN 72=2004(3) MPLI 255]. He has submitted that it was impracticable to call one third members to the office of SDO who were signatories, it was not requirement of law. They were also required to submit their affidavits vide order (R-2) dated 4.10.2007, thus action was illegal and democratic provision contained in section 21-A of Adhiniyam of 1993 has been set at naught. The subjective satisfaction reached by the SDO was against the material on record and procedure adopted for that purpose was not legal and valid. 6. Shri P.N. Dubey, Deputy Advocate General and Shri D.K. Tripathi, learned counsel appearing for respondents have supported the action and submitted that as there was unrest in the village, it was not possible to verify the signatures appended to the proposal of recall, hence the SDO had called the incumbents to his office for the purpose of verification and only 217 persons turned up to support the proposal for recall, which was less than the requisite strength, consequently the proposal has been rightly rejected as SDO was not satisfied that the proposal had been moved by the requisite majority. 7. In the instant case it is apparent that initially an effort was made by the constituting committee to obtain verification in the village but it is the case of respondents No.1 to 3 that it was not possible to verify the signatures in the village due to volatile situation and possibility of dispute between factions, that could not have been a ground to defeat the proposal for recall. In the instant case none of the members of Gram Sabha had come forward whose signatures were there, to indicate that signatures were forged. It was wholly impracticable to ask such large number of persons to file their affidavits as per notice (R-2) dated 4.10.2007 it appears that it was intended to defeat the process of recall itself. The action could not be said to be bona fide at all requiring affidavits to be filed of 987 persons, it was wholly illegal and impermissible act, there being no legal requirement that such large number of members of Gram Sabha should be asked to file their affidavits, there was no logic or rhyme behind the action. 8. Shri P.N. Dubey, learned Deputy Advocate General has submitted that ultimately filing of affidavit was not insisted and only signatures were obtained of the persons in support of the verification of proposal for recall but what was required by the notice was that affidavit should be filed by the persons who had signed the proposal for recall. Asking the villagers by public notice to submit their affidavit was wholly illegal and impracticable act and was clearly intended to defeat the proposal for recall which was required to set in motion. As notice required filing of the affidavit by the incumbents who were signatories of the proposal for recall of Sarpanch, no difference was made by the fact the signatures were ultimately obtained in the register. Full Bench of this Court in State of M.P and another v. Manorama Gour (supra), in the context of pari-materia provision of section 24 of M.P. Municipal Corporation Act with respect to recall which provides proposal to be initiated by the councillors where body which initiates the proposal for recall is smaller one, has observed that the Act does not contemplate that the proposal should be presented by the three forth of the Councillors in person or that for the purpose of verification of signatures of the signatories their personal presence is necessary. It has also been observed by the Full Bench that if the physical presence of the Councillor concerned is made a sine qua non for verification of the signatures, at times it may defeat the purpose. It has also been observed by the Full Bench that if the physical presence of the Councillor concerned is made a sine qua non for verification of the signatures, at times it may defeat the purpose. There may be a situation where a Councillor may not be able to appear before the authority concerned due to old age, infirmity, serious illness, etc., though he/she was certainly in a position to put his/her signatures on the proposal. In such a situation if the authority cannot forward the proposal to the State Government for want of personal appearance though sufficient material is placed before the authority for his satisfaCtion regarding the genuineness of the signatures, the same will defeat the proposal itself and in turn the democratic process. What has been observed by the Full Bench of this Court in the context of section 24 of M.P. Municipal Corporation Act applies for section 21-A of Adhiniyam of 1993, thus it was not proper to call the 987 incumbents to the office and to require them to file their affidavits for the purpose of verification. It is also apparent in spite of requirement of affidavits to be filed, still 217 persons had appeared in support to put their signatures, there not being even single affidvit filed of incumbent indicating that signatures of incumbents were not their who were signatories to the proposal for recall. In Hariyare v. State of M.P.(supra), this Court has observed that for recalling of Sarpanch by members of Gram Sabha no enquiry in respect of signatures of members on the prayer for recall is contemplated by the act or the rules, however, SDO should be prima facie satisfied. Satisfaction of SDO which is contemplated, is not arbitrary. Though decision of Hariyare has been referred to in the order of Collector but its mandate in fact has. been violated in the instant case as subjective satisfaction reached, cold not be said to be proper, it was formed arbitrarily and violated the procedure laid down to be followed in the aforesaid decision of this Court. 9. Thus the order passed by the SDO and Collector are liable to be set aside, the orders are hereby set aside. been violated in the instant case as subjective satisfaction reached, cold not be said to be proper, it was formed arbitrarily and violated the procedure laid down to be followed in the aforesaid decision of this Court. 9. Thus the order passed by the SDO and Collector are liable to be set aside, the orders are hereby set aside. Case is remitted back to the SDO to proceed further in accordance with the law in the matter of proposal for recall to reconsider the matter in the light of what has been stated in the order without any further delay and proceed further in accordance with law forthwith. Recentantly, the writ petition is allowed. Parties are directed to bear their own costs as incurred of this petitiion.