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2014 DIGILAW 28 (CHH)

Suruchi Bai Jangde v. Prabharani Jangde

2014-01-23

PRITINKER DIWAKER

body2014
ORDER 1. Challenge in the present writ petition filed under Article 227 of the Constitution of India is to the order dated 1-8-2011 passed by the Additional Collector, Baloda Bazar, District Raipur and the order dated 23-7-2013 passed by the Commissioner, Raipur Division, Raipur. Vide order dated 1-8-2011 the Additional Collector had set aside the proceedings of No-Confidence Motion drawn against respondent No. 1 and in revision, the said order has been affirmed by the Commissioner vide order dated 23-7-2013. 2. Brief facts of the case are that in the year 2010 respondent No. 1 Smt. Prabharani Jangde was elected as Sarpanch of Gram Panchayat-Lachchanpur, Tehsil-Bhatapara, District Baloda Bazar. Said Gram Panchayat consists of one Sarpanch and 10 Panchas. On 18-5-2011, 9 Panchas including the petitioner submitted notice of No-Confidence Motion against respondent No. 1 before the prescribed authority i.e. Sub-Division Officer, who after verification of the signatures and satisfying himself, appointed Presiding Officer and fixed the date as 7-6-2011 for consideration of the said motion. On 7-6-2011 No-Confidence Motion was passed against respondent No. 1 as 9 Panchas voted against respondent No. 1, 1 in her favour and 1 vote was declared invalid. 3. Indisputably, respondent No. 1 had duly participated in the proceedings of No-Confidence Motion and at the time of proceedings of the motion, neither any objection was raised by her nor the procedure which was adopted was assailed by her before the prescribed officer. Immediately after passing of No-Confidence Motion, the petitioner, who was Up-Sarpanch of the Gram Panchayat, became in-charge Sarpanch of the Gram Panchayat. 4. The proceedings of No-Confidence Motion were subjected to reference by respondent No. 1 before the Additional Collector under S. 21(4) of the Panchayat Raj Adhiniyam. Vide order dated 1-8-2011 passed in the said reference, the Additional Collector set aside the proceedings of No-Confidence Motion holding that proper procedure as prescribed in sub-rule (3) of Rule 3 of the 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 (in short the Rules, 1994) have not been followed. 5. The said order of the Additional Collector was assailed by the petitioner and one Sukhram before the Commissioner in revision No. 523/A-89/2010-11 and vide order dated 23-7-2013 the Commissioner has dismissed the revision holding that the same is not maintainable. 5. The said order of the Additional Collector was assailed by the petitioner and one Sukhram before the Commissioner in revision No. 523/A-89/2010-11 and vide order dated 23-7-2013 the Commissioner has dismissed the revision holding that the same is not maintainable. It is this order of the Commissioner dated 23-7-2013 and that of the Additional Collector dated 1-8-2011 which have been assailed in the present writ petition. 6. Learned counsel for the petitioner submits as under: (i) That the No-Confidence Motion was passed by thumping majority i.e. 9 voted against respondent No. 1 whereas only one vote was cast in favour of respondent No. 1 and as such, respondent No. 1 has no authority to continue as Sarpanch of Gram Panchayat-Lachchanpur. (ii) That even if the meeting of No-Confidence Motion was not convened within 15 days from the date of issuance of notice i.e. 18-5-2011, it will not vitiate the proceedings of No-Confidence Motion and the ultimate result. (iii) That as no prejudice has been caused to respondent No. 1, she cannot assail the proceedings of No-Confidence Motion. (iv) That once respondent No. 1 had duly participated in the proceedings of No-Confidence Motion but failed to secure the confidence of the members, she has absolutely no right to continue on her post. In support of his contention, learned counsel for the petitioner has placed reliance on the judgments rendered in the matters of Ghanshayam Yadav vs. Rameshwar Sahu & Others, 2007 (1) MPHT 86 ; Aghnuram Nishad vs. State of Chhattisgarh, 2008 (3) MPHT 1 (CG): AIR 2008 (NOC) 2410 (Chh); Dharamchand Kunjan vs. State of Chhattisgarh, W.P. (C) No. 5978 of 2011 dated 10-10-2011; Bhulin Bai Dewangan vs. State of Madhya Pradesh, 2000 (4) MPHT 69 (FB); Nanchi Bai vs. State of Madhya Pradesh, 2005 (1) MPLJ 200: 2005 AIHC 1576 (M.P.) and Gauri Bai vs. State of Chhattisgarh, 2009 (2) Cg LJ 175 (DB). 7. On the other hand, supporting the orders impugned of the Additional Collector and the Commissioner, contention of Shri Pradhan, learned counsel appearing for respondent No. 1, is as under: (i) That meeting of No-Confidence Motion was held after 19 days from the date of issuance of notice i.e. 18-5-2011 and, therefore, the same is against the rules and impermissible under the law. (ii) That the prescribed authority has not satisfied itself about the contents of the notice and delegated his power to the Chief Executive Officer, which is not permissible under the law. (iii) That the concurrent findings recorded by the Additional Collector and the Commissioner cannot be interfered with the present petition filed under Article 227 of the Constitution of India. (iv) That only one year tenure of respondent No. 1 is left and, therefore, she should not be dislodged from her post at this stage. 8. Learned counsel appearing for the State and respondent No. 4 have duly assisted this Court. 9. I have heard learned counsel for the parties and perused the material available on record. 10. The sole question for consideration before this Court is one of general importance regarding the interpretation of sub-rule (3) of Rule 3 of the Rules, 1994 read with S. 21 of the C.G. Panchayat Raj Adhiniyam, 1993. The relevant provisions contained in S. 21 of the Act and Rule 3 including sub-rule (3) framed thereunder read as follows:- Section 21 of the Act: No-Confidence Motion against Sarpanch and Up-Sarpanch – (1) On a motion of no-confidence being passed by the Gram Panchayat by a resolution passed by majority of not less than three fourth of the Panchas present and voting and such majority is more than two-third of the total number of Panchas constituting the Gram Panchayat for the time being, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall cease to hold office forthwith. (2) Notwithstanding anything contained in this Act or the Rules made thereunder a Sarpanch or an Up-Sarpanch shall not preside over a meeting in which a motion of no-confidence is discussed against him. Such meeting shall be convened in such manner as may be prescribed and shall be presided over by an officer of the Government as the Prescribed Authority may appoint. The Sarpanch or the Up-Sarpanch, as the case may be, shall have a right to speak at, or otherwise to take part in, the proceeding of the meeting. (3) No-confidence motion shall not lie against the Sarpanch or Up-Sarpanch within a period of:- (i) One year from the date of which the Sarpanch or Up-Sarpanch enter their respective office. (ii) Six months preceding the date on which the term of office of the Sarpanch or Up-Sarpanch, as the case may be, expires. (3) No-confidence motion shall not lie against the Sarpanch or Up-Sarpanch within a period of:- (i) One year from the date of which the Sarpanch or Up-Sarpanch enter their respective office. (ii) Six months preceding the date on which the term of office of the Sarpanch or Up-Sarpanch, as the case may be, expires. (iii) One year from the date on which previous motion of no-confidence was rejected. (4) If the Sarpanch or the Up-Sarpanch, as the case may be, desires to challenge the validity of the motion carried out under sub-section (1), he shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide it, as far as possible, within thirty days from the date on which it was received by him, as his decision shall be final. Rule 3 of the Rules is as under:- 3. Notice (1) Elected members of Gram Panchayat, Janpad Panchayat or Zila Panchayat desiring to move a motion of no-confidence against the Sarpanch or Up-Sarpanch of a Gram Panchayat or President or Vice-President of Janpad or Zila Panchayat, as the case may be, shall give a notice thereof to the prescribed authority in the form appended to these rules: Provided that such notice shall be signed by not less than one-third of the total number of elected members of the concerned Panchayat: Provided further that where the elected members desires to move the motion of no-confidence against both the Sarpanch and Up-Sarpanch, President and Vice-President of Janpad Panchayat or Zila Panchayat as the case may be, they shall give separate notice. (2) The prescribed authority, on receiving the notice under sub-rule (1) shall sign thereon a certificate stating the date on which hour and at which the notice has been given to him and shall acknowledge its receipt. (3) On receiving the notice under sub-rule (1) the prescribed authority shall satisfy himself about the admissibility of the notice with reference to Ss. 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, Janpad 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. 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, Janpad 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 despatched by him through the Secretary of the Gram Panchayat or Chief Executive Officer of the Janpad Panchayat or Zila Panchayat, as the case may be, to every member of the Panchayat concerned seven days before the meeting. 11. Indisputably, respondent No. 1 had participated in the proceedings of No-Confidence Motion and has also cast her vote. She had never raised any objection before the Presiding Officer at the time of proceedings of No-Confidence Motion. She has failed to point out as to what prejudice has been caused to her in carrying out No-Confidence Motion against her. 12. I am in respectful agreement with the views taken by the M.P. High Court as well as this Court in the above cited cases and also hold that unless it is shown that noncompliance of Rule 3(3) of the 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 view of the above factual position and the law laid down in the above-mentioned cases, this Court is of the considered view that the orders of the Additional Collector and the Commissioner are not in accordance with law and, therefore, the same are set aside. The proceedings of No-Confidence Motion carried out against respondent No. 1 is held proper and in accordance with law. The petition is thus allowed. Petition allowed.