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2014 DIGILAW 1624 (MP)

Rajendra Singh Parmar v. State of M. P.

2014-12-09

S.K.GANGELE, SHEEL NAGU

body2014
JUDGMENT 1. Heard. 2. This intra-Court appeal assails the final order dated 3.12.2014 passed in Writ Petition No.773/2014 by the learned Single Judge, whereby the writ Court while rejecting the petition in question has in effect upheld the no-confidence motion passed on 7.11.2012 against the petitioner ousting him from the office of President Janpad Panchayat Gohad, District Bhind. 3. The instant litigation is the culmination of a long drawn battle waged by the petitioner since his ouster from the office of President, Janpad Panchayat Gohad, District Bhind on account of passing of no-confidence motion on 17.10.2012. 4. Without entering into the prolixity of the varied facts involved, this Court for the sake of brevity formulates the following question of law based upon the arguments extended by the learned counsel for rival parties and after perusal of the material placed on record : “Whether fixing and convening of meeting of no-confidence motion beyond 15 days of receipt of requisition for the meeting, was proper and legal in the given facts and circumstances of the case and on the anvil of the statutory provisions of 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 Avishwas Prastav)Niyam, 1994 (“ Rules of 1994” for brevity) read with section 28 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (“Act of 1993” for brevity).” 5. Undisputed attending facts are that on 17.10.2012, twenty one members of Janpad Panchayat submitted notice to the Collector under Rule 3 of Rules of 1994, seeking convening of meeting of no-confidence motion against the petitioner. The Collector on 30.10.2012 directed convening of meeting by fixing the date as 7.11.2012. The meeting of Janpad Panchayat was convened on 7.11.2012 when the no-confidence motion was presented, discussed and passed against the petitioner. Twenty votes were casted in favour of motion and four against the motion. 6. The numerical requirement of section 28 (1) of the Act of 1993 having been met, the petitioner was ousted from the Office of Janpad Panchayat, Gohad, District Bhind. Twenty votes were casted in favour of motion and four against the motion. 6. The numerical requirement of section 28 (1) of the Act of 1993 having been met, the petitioner was ousted from the Office of Janpad Panchayat, Gohad, District Bhind. Primarily raising the issue of violation of Rule 3 (3) of the Rules of 1994 inasmuch as the Collector fixing the date (7.11.2012) of the meeting beyond the prescribed period of 15 days from the date of receipt (17.10.2012) of the notice, the petitioner unsuccessfully assailed the no-confidence motion before the Commissioner, which order has been upheld by the impugned order passed in the writ Court. 7. Learned counsel for appellant/petitioner primarily contends that the writ Court has not considered the grounds raised by the petitioner of denial of opportunity of speaking in the no-confidence motion meeting and also that due to convening of the meeting of no-confidence motion after the prescribed period of 15 days, the Collector has allowed horse trading during the interregnum period. It is further contended that grave prejudice was caused to the petitioner. It is also contended by placing reliance on the decisions of this Court in the cases of Muku Bai v. State of M.P. and others : 1999(1) Vidhi Bhasvar 4 = 1998 (2) MPLJ 661 (Para 8); Bhulin Dewangan v. State of M.P. : 2000(2) JLJ 253 (FB) = 2001(2) MPLJ 372 (FB); and Jugraj Singh Markam v. Dhannulal Maravi and others : 2003 (4) MPLJ 378 (Para 16) that the writ Court misdirected itself by wrongly applying the ratio laid down by the Full Bench of this Court in the case of Smt. Bhulin Dewangan v. State of M.P. : 2000(2) JLJ 253 (FB) = 2001(2) MPLJ 372 (FB). 8. Per contra, the learned counsel for respondents have contended that the impugned order is impregnable and impeccable and thus have sought dismissal of this petition primarily on the ground that the writ Court has rightly found that no prejudice was caused to the petitioner after placing reliance on the Full Bench decision of this Court in the case of Smt. Bhulin Dewangan (supra). 9. The factum of the meeting having been convened on 7.11.2012, which was beyond the period of 15 days, is an admitted fact. On the strength of this indisputably factual matrix, the writ Court assiduously discussed and considered the ground of prejudice. 9. The factum of the meeting having been convened on 7.11.2012, which was beyond the period of 15 days, is an admitted fact. On the strength of this indisputably factual matrix, the writ Court assiduously discussed and considered the ground of prejudice. The notice given by the members for convening no-confidence motion meeting, the notice of the Collector fixing the date of no-confidence motion and the minutes of no-confidence motion meeting held on 7.11.2012 have been scrutinized minutely and discussed in great details. The writ Court has held that the Collector after receipt of the notice seeking convening of no-confidence motion took sometime to verify the genuineness of the said notice and the mandatory requirement of section 28 (3) of the Act of 1993. Various decisions rendered by this Court on issue of convening of no-confidence motion beyond the prescribed period of 15 days have been considered including the Full Bench decision in Smt. Bhulin Dewangan (supra). 10. The writ Court while disbelieving the ground of prejudice caused to the petitioner has held in para 20 of the impugned order that there is no material on record to show that between 17.10.2012 to 7.11.2012, any objection was raised by the members of Janpad Panchayat, who had given notice on 17.10.2012 that they did not sign the notice. The writ Court also found that none of these members raised their voice against any incident of being wrongfully confined. The affidavits filed by the members were also verified by the writ Court to record a finding that there is no allegation of coercion undue influence or threat to them. The writ Court also took into account two affidavits filed on 30.8.2007 and 31.8.2007 by two members alleging threat and coercion, but it was found that the said two members later resiled from this stand. In view of the contradictory statement made by the members and their being no cogent evidence to even prima-facie hold that there was any incident of coercion, undue influence or threat, the Court came to a reasonable finding that affidavits submitted by the said two members do not inspire confidence and, therefore held that the Commissioner while rejecting the representation preferred by the petitioner under section 28 (4) of the Act of 1993 rightly disbelieved the said affidavits. 11. 11. Pertinently the writ Court perused the minutes of the no-confidence meeting and found that petitioner was allowed to speak against the motion in the meeting dated 7.11.2012. Thus, the ground of non-affording of opportunity to the petitioner is untenable. 12. While dealing with the legal aspect, the writ Court has rightly relied upon the Full Bench decision in the case of Smt. Bhulin Dewangan (supra) to hold that a mere procedural error of not holding the meeting within the prescribed period of 15 days, cannot lead to a vitiating the no-confidence motion, which was passed by requisite and substantial majority. 13. At this juncture,this Court may mention with profit that the provision of Rule 3(3) of the Rules of 1994 admittedly castes obligation upon the Collector to fix the date for holding of meeting of no-confidence motion within 15 days of the receipt of notice contemplated under Rule 3 (1) of the Rules of 1994, but the fact remains that the said Rule does not provide for any consequence for non-compliance of the said obligation caste upon the Collector. 14. It is settled principle of jurisprudence that a provision couched in mandatory language cannot always be treated as mandatory unless the provision itself provides for a consequence of its non-compliance. The decisions of the apex Court in the following cases can profitably be extracted below :- 14.1 Relevant para in the case of Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 reads thus : “16. …There is no valid reason for treating the word “shall” in section 82 in a manner different from the same word used in Order XXXIV, Rule 1 of the Civil Procedure Code. It is one of the rules of construction that a provision like this is not mandatory unless non-compliance with it is made penal. …” 14.2 Relevant para in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 reads thus : “42. We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative.” 15. Interpretation of Statutes by revered Justice G.P. Singh Tenth edition in Chapter-5 is extracted below for ready reference and convenience:- “section 82 of the Representation of People Act, 1951, which requires certain candidates to be joined as respondents to an election petition was held to be directory before amendment of the Act by Act 27 of 1956, as no consequence of non-joinder was till then provided by the Act. But after introduction of section 90 (3) by the amending Act which requires the Election Tribunal to dismiss an election petition for non-compliance of section 82, the said provision has been held to be mandatory.” 16. Admittedly, the provision of Rule 3 (3) of the Rules of 1994 does not contemplate any consequence of rendering the no-confidence motion as null and void in case the meeting of no-confidence motion is held beyond the period of 15 days of receipt of the notice by the Collector. 17. This Court further emphasised the point that the will of the members of Janpad Panchayat, who have voted in favour of no-confidence motion, cannot be brushed aside or ignored merely on the basis of the delay caused by the authority to comply with a mandatory provision not providing for any penal consequence especially when the factum of prejudice has not been established by the aggrieved person, i.e., petitioner. In this respect, it is profitable to refer to the decisions of the apex Court. The relevant paragraphs of the said decisions are reproduced for convenience and ready reference here-in-below : 17.1 Relevant para in the case of Dattatraya Moreshwar v. State of Bombay AIR 1952 SC 181 reads thus:- “7. … It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. … It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.” 17.2 Relevant para in the case of T.V. Usman v. Food Inspector, Tellicherry Municipality, (1994) 1 SCC 754 reads thus:- “12. … It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period. ...... Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst’s report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint. I am clearly of the view that Rule 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory.” 17.3 Relevant para in the case of May George v. Tahsildar, (2010) 13 SCC 98 reads thus :- “25. The law on this issue can be summarised to the effect that in order to declare a provision mandatory, the test to be applied is as to whether noncompliance with the provision could render the entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of the legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject-matter and object of the statutory provisions in question. Whether the provision is mandatory or directory, depends upon the intent of the legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject-matter and object of the statutory provisions in question. The Court may find out as to what would be the consequence which would flow from construing it in one way or the other and as to whether the statute provides for a contingency of the non-compliance with the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid.” 18. In view of the above discussion, we are of the considered opinion that the order of the writ Court impugned herein is tenable and does not deserve any interference. Consequently, the writ appeal deserves to be and is hereby dismissed sans cost.