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2012 DIGILAW 199 (CHH)

SAHASRAM JANGDE v. STATE OF C. G.

2012-08-03

PRASHANT KUMAR MISHRA

body2012
ORDER 1. This writ petition under Article 226 of Constitution of India has been preferred by the 18 Panchas of Gram Panchayat, Dahida, Tahsil Sarangarh, District Raigarh, challenging the order passed by the Additional Collector, Raigarh on 28.06.2012 (Annexure P-19) allowing the reference filed by respondent No.6 Smt. Dokari Bai, the Sarpanch of Gram Panchayat, Dahida, u/s 21 (4) of the C.G. Panchayat Raj Adhiniyam (henceforth 'Adhiniyam '). 2. The facts of the case, briefly stated, are that respondent No.6 is the elected Sarpanch of the Gram Panchayat. On an earlier occasion, no confidence motion was passed against her, however, same was declared as illegal on the ground that the notice of no-confidence motion was dispatched only two days before the date of meeting. However, relying on the judgment of M.P. High Court in the matter of Kandhlal Patel Vs. State of M.P., 1999 (2) JLJ 109 , it was directed that since the no-confidence motion has been set aside on technical grounds, the bar under section 21 (3)(iii) of the Adhiniyam 1993 against bringing another motion within one year would not apply in the case. This order was passed on 17.04.2012 in W.P(C). No.2932/2011. 3. The petitioners moved a no-confidence motion again on 07.05.2012 on which the SDO (Revenue), Sarangarh/prescribed authority, instead of taking steps as desired under C.G. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice President Ke Virudh Avishwas Prastav) Niyam, 1994 (hereinafter referred to as "the Avishwas Prastav Niyam, 1994") sought opinion from the Chief Executive Officer of Janpad Panchayat, who in turn sought opinion from its counsel. The SDO (Revenue) vide letter Annexure P-6 dated 9-5-2012 again sought opinion from the Deputy Director (Panchayat) and on receiving the opinion on 14.05.2012 (Annexure P-7) in favour of processing the no confidence motion dispatched the notice to all the members of the Panchayat on 14.05.2012 convening the meeting of Gram Panchayat on 21.05.2012. In the said meeting, 18 Panchas voted in favour of the motion and three members of the Panchayat voted against it. Since the desired number of Panchas voted in favour of no confidence motion, the respondent no.6 was removed from the office. In the said meeting, 18 Panchas voted in favour of the motion and three members of the Panchayat voted against it. Since the desired number of Panchas voted in favour of no confidence motion, the respondent no.6 was removed from the office. The Sarpanch submitted a reference u/s 21 (4) of the Adhiniyam, 1993 before the Additional Collector and the said authority allowed the reference on the ground that notice of meeting was not dispatched by giving clear 7 days notice. 4. Learned counsel for the petitioner would argue that in the earlier writ petition it was not decided as to whether after the Sarpanch having participated in the meeting and no prejudice having been caused the proceedings of the Gram Panchayat can be annulled in view of the law laid down by the full bench of M.P. High Court in the matter of Smt. Bhulin Dewangan Vs. State of M.P. 2001 (2) MPLJ 372 . He would submit that in the earlier round of litigation, only 3 days' notice was given whereas in the present case, the meeting has taken place on the 8th day, therefore, it is not a case of violation of Sub-rule (3) of Rule 3 of the Aviswas Prastav Rules, 1994. He would further submit that unless the outgoing Sarpanch succeeds in demonstrating before this Court that she was prejudiced in any manner at the time of meeting, the resolution of the Panchayat cannot be set aside. 5. On the other hand, learned State Counsel as also learned counsel for respondent No.5 Janpad Panchayat and respondent No.6 would argue that since 7 clear days' notice was not issued, the Additional Collector has rightly set aside the decision of the Gram Panchayat passing the motion of no-confidence. 6. Having heard learned counsel for the parties, this Court is of the considered opinion that the reasoning assigned by the Additional Collector while allowing the application filed by respondent No.6 and setting aside the resolution of the Gram Panchayat is not in accordance with law laid down by the Full Bench of the M.P. High Court in the matter of Smt. Bhulin Dewangan, 2001 (2) MPLJ 372 (supra) wherein it has been held that though non-compliance of mandatory requirement results in nullification of the Act, yet there are several exceptions to the Rule. If certain requirements or conditions are provided by the 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. The Full Bench proceeded further to observe 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 find out whether in a given case, noncompliance 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 and that mere noncompliance 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 of the Act or the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India comes to the conclusion that such non-compliance has caused serious prejudice to the affected office bearers or has otherwise resulted in failure of justice. 7. While holding that though the second part of sub-rule (3) of; Rule 3 is mandatory, but non-compliance of the said part of the rule would not in every case invalidate the action, the Full Bench in the above referred case of Smt. Bhulin Dewangan, (supra) drawn support from the constructions of the provisions contained in the "Rule from Statutory Construction" by Francis J.Mc. Caffrrey, 1953 Edition, Article 52, Page 110 wherein the following is stated: "Where a statute regulates the time at or within which an act is to be done by a public officer or body, it is generally construed to be permissive only as to the time, for the reason "that the public interests are not to suffer by the laches of any public officer" (Looney Vs. Hughes, 26 N.Y., 514). While the Courts are inclined to hold such provisions to be directory only as to time, they will be read as mandatory if the nature of the act to be performed or the phraseology of the statute indicates an intention on the part of the legislature to exact a literal compliance with the requirement of time. Hughes, 26 N.Y., 514). While the Courts are inclined to hold such provisions to be directory only as to time, they will be read as mandatory if the nature of the act to be performed or the phraseology of the statute indicates an intention on the part of the legislature to exact a literal compliance with the requirement of time. The Courts seek to achieve a just result in not ascribing an invalidating effect to the failure of public officers to observe the time provisions of statutes; a contrary rule would operate unfairly in prejudicing the rights of persons who have no control over the conduct of the public officer." (Emphasis supplied) The Full Bench thereafter relied on the statutory interpretation by Francis Bennion, Second Edition, Part I, Section 10 Page 34 which reads thus: "Even where the duty is mandatory, the Court will not now-a-days hold it to be contravened because of a purely formal or technical defect. This may be described as a defect that does not materially impair the remedy intended to be provided by the enactment for the mischief to which it is directed." 8. Relying on the said judgment of Bhulin Dewangan (supra), the Division Bench of this Court in the matter of Gauri Bai Vs. State of C.G. and others, 2009 (2) CGLJ 175 , has taken the similar view to hold that once the Sarpanch participated in the meeting without raising any objection and took a chance and being unsuccessful in the meeting challenged the validity on the ground of alleged violation of sub-rule (3) of Rule 3 of the Adhiniyam, no interference can be made at her instance in the absence of any prejudice having been demonstrated by the said Sarpanch. 9. 9. When the law laid down by the full Bench of the M.P. High Court and Division Bench of this Court is applied to the facts of the present case, it is to be seen that respondent No.6 Sarpanch has not raised any ground before the Additional Collector that because of the fact that meeting was convened on 8th day from the date of dispatch of notice and not on 9th day, and thus clear 7 days notice was not issued, she has suffered grave prejudice in preparing herself for the meeting and there being no such finding by the Additional Collector in the impugned order, it will be taken as if no prejudice has been caused to respondent No.6 Sarpanch and thus in absence of prejudice or failure of justice, the Additional Collector has wrongly set aside the resolution of the Gram Panchayat declaring the no-confidence motion to be passed. It is also to be seen that once this Court in the earlier writ petition has held that the earlier resolution of the Gram Panchayat passing no-confidence motion in May, 2011 having been annulled on technical grounds, the bar against moving of another motion within one year would not apply, the SDO (Revenue) should not have sought opinion from the Chief Executive Officer, Janpad Panchayat or from the Deputy Director Panchayat. However, by doing so, he wasted 7 days in the process. Therefore, once the no confidence motion has been passed the democratic norms and the statutory provisions cannot be left at the mercy of the prescribed authority when the law is well settled in the case of Bhulin Dewangan (supra). Declaring the resolution of the Gram Panchayat which has passed the no confidence motion by majority as illegal would render the wish of the house nugatory and the Sarpanch who has lost the confidence of the house shall be allowed to function without any mandate in her favour. Such interpretation of Rule is neither permissible nor contemplated and this Court will not allow such effort of the prescribed authority to frustrate the will of the house by adopting dilatory tactics on the pretext of seeking legal opinion or opinion from the higher authorities. 10. Learned counsel for respondent No.6 has relied on judgment of M.P. High Court in the matter of Jugraj Singh Markam Vs. Dhannalal Maravi and other, 2003 (4) MPLJ 378 . 10. Learned counsel for respondent No.6 has relied on judgment of M.P. High Court in the matter of Jugraj Singh Markam Vs. Dhannalal Maravi and other, 2003 (4) MPLJ 378 . However, in view of the discussion made above, and particularly the law laid down by the Full Bench of the M.P. High Court and the peculiar facts of this case, the said judgment relied upon by respondent no.6 has no application and is distinguishable. 11. In the result, the writ petition succeeds and is allowed. The impugned order dt.28.06.2012 passed by the Additional Collector is set aside. Consequently respondent no.6 no longer remains as Sarpanch of Gram Panchayat, Dahida, Tahsil Sarangarh District Raigarh. Petition Allowed.