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Madhya Pradesh High Court · body

2018 DIGILAW 717 (MP)

Sikandar Khan Mev v. State of M. P.

2018-08-20

VIVEK RUSIA

body2018
ORDER 1. The petitioner has filed the present petition being aggrieved by order dated 4.1.2018 passed by the Sub-Divisional Officer (SDO), Revenue, Mandsaur and order dated 15.1.2018 passed by the Collector, District Mandsaur. 2. The petitioner is resident of village Fatehganj, Tahsil Deora and voter of Gram Panchayat Fatehganj. The respondent No. 5 was elected as Sarpanch and has completed more than 2 ½ years on the said post. 3. According to the petitioner, respondent No. 5 was indulging in large number of corruption and misusing his office to enrich himself therefore petitioner along with as many as 591 members of the Gram Sabha of Village Fatehganj submitted a representation dated 17.11.2017 to the SDO, Revenue, Mandsaur seeking recalling of the respondent No. 5 from post of Sarpanch of Fatehganj under section 21A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 . The SDO registered the complaint as Case No. 153/13-121/2017-18 and directed the Tahsildar to conduct an inquiry in order to ascertain the genuineness of the signatures of the complainants. The Tahsildar issued a public notice dated 5.12.2017 to the petitioner as well as 614 other members of Gram Sabha, Fatehganj to appear before him on the date and time specified in the said notice. The petitioner and others submitted protest before respondents No. 2 and 3 in respect of the procedure adopted by the Sub Divisional Officer. 4. Despite aforesaid protest, the Tahsildar inquired into the genuineness of the names and signatures of the complainants and reached to the conclusion that out of 1686 voters of Gram Sabha, as many as 612 members have shown their willingness for recalling of respondent No. 5 from the post of Sarpanch. 5. According to the petitioner, after the aforesaid procedure, the Sub Divisional Officer ought to have conducted secret ballot for the purposes of recalling of respondent No. 5, but by the impugned order dated 4.1.2018, he has deferred the proceedings and sought instructions from the State Government. The Collector, Mandsaur, vide order dated 15.1.2018 has further sought instructions from respondent No. 1 as regards the procedure to be adopted in the case of recalling of respondent No. 5 in absence of any procedure prescribed under sec 21A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 . The Collector, Mandsaur, vide order dated 15.1.2018 has further sought instructions from respondent No. 1 as regards the procedure to be adopted in the case of recalling of respondent No. 5 in absence of any procedure prescribed under sec 21A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 . When respondents No. 2, 3 and 4 did not take any action as per section 21A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993, the petitioner has approached this Court by way of the present writ petition. 6. After notice, respondents No. 1 to 4 have filed the return by submitting that section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 provides for recalling of Sarpanch and Panch of Gram Panchayat in accordance with the procedure as may be prescribed, but neither the Act nor the Rules made thereunder provides any prescribed procedure for conducting secret ballot. Since there is no procedure prescribed, therefore, the Director vide letter dated 27.1.2018 has rightly directed the Collector that since no Rules have been notified, therefore, the proceedings cannot be continued for removal of respondent No. 5 under section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 . 7. The respondent No. 5 has also filed the return by submitting that the complaint is signed by 591 members, out of which, the Tehsildar found that 67 members have denied their signature on the proposal for recalling the Sarpanch. Thus, only 524 members have treated to sign the proposal, whereas as per voter list, total numbers of voters in the year 2017 are 1686 and accordingly, 1/3rd voters would be 562. Since the proposal for recall was not made by 1/3rd of total voters of Gram Panchayat, therefore, the proceedings under section 21-A of the Panchayat Act are not maintainable and the same has rightly been dropped. 8. The respondent No. 5 has further submitted that the State Election Commission is competent authority in respect of the election of Gram Panchayat. The petitioner did not implead State Election Commission as respondent in this petition. The respondent No. 5 has also supported the State Government by submitting that the procedure is not prescribed under section 21A of The Panchayat Raj and Gram Swaraj Adhiniyam, 1993 , therefore, the proceedings have rightly been dropped, hence no interference is called for and prayed for dismissal of the petition. The respondent No. 5 has also supported the State Government by submitting that the procedure is not prescribed under section 21A of The Panchayat Raj and Gram Swaraj Adhiniyam, 1993 , therefore, the proceedings have rightly been dropped, hence no interference is called for and prayed for dismissal of the petition. I have heard the arguments of learned counsel for the parties. 9. Shri L.C. Patne, learned counsel appearing for the petitioner, has argued that section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 is a special provision, under which, Gram Sabha is competent to recall the Sarpanch by way of secret ballot voting. The procedure is prescribed in the section itself i.e. recall through secret ballot by majority of more than half of the members constituting the Gram Sabha within the Gram Panchayat. Therefore, no separate procedure is required to be prescribed. He further submitted that in case of recall of Sarpanch of Gram Panchayat, Padalia Lal Muha, the Sub-Divisional Officer conducted the secret ballot on 30.5.2003, therefore, in the present case also, after verification of the signatures, the Sub Divisional Officer ought to have held the voting by way of secret ballot instead of obtaining instructions from the Collector and the State Government. The Government is unnecessary showing undue favor to respondent No. 5. Hence, the writ petition is liable to be allowed by directing the Sub Divisional Officer to proceed further under section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 . 10. Shri H.Y. Mehta, learned Government Advocate appearing for the respondents No. 1 to 4, submitted that the Government has rightly opined that since the procedure has not been prescribed to give effect to the provisions of section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 , therefore, the Director, Panchayat has rightly directed the collector to drop the proceedings. In support of his contention, he has placed reliance over the judgment of apex Court in the case of BSNL v. BPL Mobile Cellular Ltd. : (2008) 13 SCC 595, in which, the apex Court has held that ordinarily, the word ‘prescribed’ means procedure prescribed by Rules. In the case of Ashok Tshering Bhutia v. State of Sikkim : (2011) 4 SCC 402 , again the apex Court has held that the word ‘prescribed’ means procedure prescribed in law and not otherwise. In the case of Ashok Tshering Bhutia v. State of Sikkim : (2011) 4 SCC 402 , again the apex Court has held that the word ‘prescribed’ means procedure prescribed in law and not otherwise. Hence, no interference is called for in this petition and the proceedings under section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 can be initiated again after the procedure prescribed is followed by the State Government. 11. Shri C.L. Yadav, learned senior counsel appearing for respondent No. 5, advanced the arguments by submitting that the State Election Commission is the competent authority to conduct the election in respect of legislature, Municipal Corporation, Municipalities, Panchayat, etc. section 47 of the Municipalities Act, 1961 and section 24 of the Municipal Corporation Act, 1956 provides the procedure for recall of the Mayor concern through secret ballot by majority of more than half of the voters of the Corporation or Municipal Council, as may be the procedure prescribed in accordance with law. The procedure is prescribed in sub-sections (2) and (3) of section itself, under which, the State Election Commission on a proposal of recall in such a manner as may be prescribed. section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 is silent about the role of Election Commission and admittedly, no procedure is prescribed, therefore, the respondent No. 5 cannot be removed. He further emphasised that the proposal for removal is not supported by 1/3rd members of the Gram Sabha, who elected the respondent No. 5 in the year 2014. The petitioner is not having support of requisite 1/3rd members even as per the voter list of the year 2017 hence even otherwise on this ground also , the proceedings have rightly been dropped and hence, he prays for dismissal of the petition. 12. Mr Patne argued to controvert the arguments of learned counsel of the respondents by submitting that even if procedure is not there but the procedure prescribed in M.P. Panchayat Nirvachan Niyam, 1995 (hereinafter, for short, “Rules of 1995) can be followed to give effect of the provisions of Section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 . 13. The controversy involved in this petition is limited to the interpretation of section 21-A of The Panchayat Raj and Gram Swaraj Adhiniyam, 1993 . 13. The controversy involved in this petition is limited to the interpretation of section 21-A of The Panchayat Raj and Gram Swaraj Adhiniyam, 1993 . According to the petitioner, Sarpanch is liable to be recalled under section 21-A of the Panchayat Act through secret ballot by a majority of more than half of total members constituting Gram Sabha. But, according to the respondents, section 21A of the Panchayat Act provides that every Sarpanch of Gram Panchayat shall forthwith deemed to have vacated the office on secret ballot by majority in accordance with the procedure as may be prescribed, but, no such procedure is prescribed so far, therefore, the respondent No. 5 cannot be removed under section 21-A of the Panchayat Act. section 21-A is a special provision inserted in the Panchayat Act by the Act No. 5 of 1999 w.e.f. 5.4.1999 by which every Sarpanch of Gram Panchayat can be recalled by a member constituting Gram Sabha, otherwise the provision of section 21 is already there under which No Confidence Motion can be moved by a Gram Panchayat for the removal of the Sarpanch or Up-Sarpanch for removal. The State Government by virtue of powers conferred by sub-section (1) of section 95 read with sub-section (2) of section 21, sub-section 2 of section 28, and sub-section (2) of section 35 of the Act made the Rules called M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-Presidentg Ke virudh Avishwas Prastav) Niyam, 1994 (hereinafter, for short, “Rules of 1994). These Rules specifically provide the procedure for passing a no-confidence motion against the office-bearer of Gram Panchayat. The pari materia provisions are there in Municipalities Act and Municipal Corporation Act for recalling of the Mayor. section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 is reproduced below : “21-A. Recalling of office bearers of Gram Panchayat. These Rules specifically provide the procedure for passing a no-confidence motion against the office-bearer of Gram Panchayat. The pari materia provisions are there in Municipalities Act and Municipal Corporation Act for recalling of the Mayor. section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 is reproduced below : “21-A. Recalling of office bearers of Gram Panchayat. - (1) Every Sarpanch of a Gram Panchayat shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than hall of the total number of the members constituting the Gram Sabha within the Gram Panchayat in accordance with the procedure, as may be prescribed; Provided that no such process of recall shall be initiated unless a notice is signed by not less than onethird of the total number of members of the Gram Sabha and presented to the prescribed authority : Provided further that no such process shall be initiated,- (i) within a period of two and a half years from the date on which such Sarpanch elected at the General Election enters his office; or (ii) if half of the period of tenure of the Sarpanch elected in a bye-election has not expired. (2) Every panch of a Gram Panchayat shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of members of the Gram Sabha constituting the ward from which the Panch is elected. (3) The provisions of sub-section (1) shall apply mutatis mutandis in relation to recall of a Panch. (4) If such Sarpanch or Panch, as the case may be, desires to challenge the validity of recalling him under the foregoing sub-sections he shall within seven days from the date on which he is deemed to have vacated the office, refer dispute to the Collector who shall decide it, as far as possible, within 30 days from the date on which it was received by him, and his decision shall be final.” Section 47 of Municipalities Act, 1961 is reproduced below : “47. Recalling of President - (1) Every President of a Council shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the corporation area casting the vote in accordance with the procedure as may be prescribed : Provided that no such process of recall shall be initiated unless a proposal is signed by not less than three-fourth of the total number of the elected Councilors and presented to the Collector : Provided further that no such process shall be initiated : (i) within a period of two years from the date on which such Mayor is elected and enters his office; (ii) If half of the period of tenure of the Mayor elected in a bye-election has not expired. Provided also that process for recall of the Mayor shall be initiated once in his whole term. (2) The Collector, after satisfying himself and verifying that the three-fourth of the Councillors specified in sub-section (1) have signed the proposal of recall, shall send the proposal to the State Government and the State Government shall make a reference to the State Election Commission. (3) On receipt of the reference, the State Election Commission shall arrange for voting on the proposal of recall in such manner as may be prescribed.” and section 24 of Municipal Corporation Act, 1956 is reproduced below : “24. Recalling of Mayor- (1) Every Mayor of a Corporation shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the corporation area casting the vote in accordance with the procedure as may be prescribed : Provided that no such process of recall shall be initiated unless a proposal is signed by not less than three-fourth of the total number of the elected Councillors and presented to the Divisional Commissioner : Provided further that no such process shall be initiated : (i) within a period of two years from the date on which such Mayor is elected and enters his office; (ii) If half of the period of tenure of the Mayor elected in a bye-election has not expired. Provided also that process for recall of the Mayor shall be initiated once in his whole term. Provided also that process for recall of the Mayor shall be initiated once in his whole term. (2) The Divisional Commissioner, after satisfying himself and verifying that the three-fourth of the Councillors specified in sub-section (1) have signed the proposal of recall, shall send the proposal to the State Government and the State Government shall made a reference to the State Election Commission. (3) On receipt of the reference, the State Election Commission shall arrange for voting on the proposal of recall in such manner as may be prescribed.” 14. In the case of Gita Bai v. Sushila Bai : 2002 (2) MPLJ 233 , the validity of section 21 was challenged on the ground that after insertion of section 21A in the statute, section 21 has become inoperative and virtually repealed. This Court has held that section 21 and section 21-A operates in two different spheres and do not portray any paradox. Under section. 21 of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993, the 'Panchas, who can take action by passing a resolution. The Gram Sabha is vested with the power under section 21A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 to recall the Sarpanch by way of secret ballot. Para 14 of the aforesaid judgment is reproduced below : “14. The heart of the matter is whether such a motion could have been moved because of insertion of section 21-A into the Act. I may proceed to add, I cannot advert to the validity of section 21 of the Act because that has to be done by the appropriate Division Bench. It is not disputed before me that operation of the provision has not been stayed by the Division Bench. Thus, presently the question arises whether by incorporation of section 21-A, operation of section 21 of the Act gets ostracÁed. It is noteworthy to mention here that the provision under section 21 of the Act has not been expressly repealed nor has it been substituted by any provision. The hub of the matter is whether by incorporation of section 21-A. the provision of section 21 of the Act is impliedly repealed. To elucidate, whether the introduction of section 21-A into the Act has the effect of annulment of section 21-A into the Act. If the provision would have been substituted, the matter would have been quite different. But it is not so. To elucidate, whether the introduction of section 21-A into the Act has the effect of annulment of section 21-A into the Act. If the provision would have been substituted, the matter would have been quite different. But it is not so. Another concept of implied repeal which has assumed significance is whether there is irreconcilability between the two provisions. On a X-ray of both the provisions, it cannot be said by any stretch of imagination that there is any inconsistency or incompatibility between the two. In my humble view, both the provisions do not indicate any kind of self contradiction. They do not portray any paradox. In fact, no inconsonance is perceptible. I venture to say so, as I am of the considered opinion, both the provisions operate in two different spheres/compartments. The authorities who take action under the provisions are different. Under section 21 of the Act, it is the 'Panchas', who are to take action by passing a resolution. It is lack of confidence of the 'Panchas' in the Sarpanch. section 21-A postulates for recalling of office bearers of the Gram Panchayats by Gram Sabha and such a power is vested with the members of the Gram Sabha to recall the Sarpanch by way of secret ballot. It is not inapposite to state here, a motion of no confidence can be advanced or mooted after expiry of one year by the 'Panchas' whereas the members of Gram Sabha have been empowered to recall after expiry of 2-1/2 years. The further stipulation is that the recall is to be passed by more than 1/2 of the total members of Gram Sabha. On a plain reading of both the provisions, it is crystal clear that one relates to the internal functioning of the Gram Panchayat where 'panchas' may be aware of certain malfunctioning of the Sarpanch and may not desire his continuance in the office, and then the question of motion of no confidence arises. The other one is a step taken by a dissatisfied and disillusioned Gram Sabha. The time period provided is also different and the Legislature in its wisdom has provided two different periods. The purpose of deliberating all these is that the two provisions are quite distinct. The other one is a step taken by a dissatisfied and disillusioned Gram Sabha. The time period provided is also different and the Legislature in its wisdom has provided two different periods. The purpose of deliberating all these is that the two provisions are quite distinct. Both of them being in the Statute Book, it cannot be said that one has to be taken recourse to, being a later provisions, and the other one has to be abandoned and buried because it was an earlier one. The later one does not cause the natural death of the earlier provision. It does not even create an accedia. Such an interpretation would have found favour, had there been substitution or the language employed under section 21-A of the Act would have been couched in a different manner to connote a meaning that there has been implied repeal of section 21 of the Act. I may hasten to add, I have not dealt with whether section 21 of the Act is ultra vires or intra vires. I have only dealt with the aspect, when both the provisions are in existence in the Statute book and there is no incompatibility or disharmony between the two, they have to be allowed their full play and one cannot abrogate the other.” 15. In view of the aforesaid judgment, section 21 of the Act gives power to Gram Panchayat to remove the Sarpanch by moving no confidence motion and section 21-A gives power to Gram Sabha to recall the Sarpanch by way of secret ballot. Both the provisions provide removal of Sarpanch either by way of resolution or recall through secret ballot. For the removal under section 21 the procedure is prescribed under sub rule of (5) of rule 5 of M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-Presidentg Ke virudh Avishwas Prastav) Niyam, 1994 (hereinafter, for short, “Rules of 1994). Therefore, section 21-A is only a substantive and enabling provision which gives power to Gram Sabha to recall the Sarpanch. The procedure prescribed under section 21 and under the Rules of 1994 can be followed for giving effect to section 21-A of the Panchayat Act. 16. Therefore, section 21-A is only a substantive and enabling provision which gives power to Gram Sabha to recall the Sarpanch. The procedure prescribed under section 21 and under the Rules of 1994 can be followed for giving effect to section 21-A of the Panchayat Act. 16. In the case of Sunita Patel v. The Collector : 2008 (2) JLJ 26 = 2008 (3) MPLJ 248 this Court has held that Rules of 1994 and M.P. Panchayat Nirvachan Niyam, 1995 (hereinafter, for short, “Rules of 1995) are quite exhaustive and they would also cover the meetings of no-confidence with regard to various things for which no provisions have been made in the Rules of 1994. Para 10 of the aforesaid judgment is reproduced below : “10. Shri V.K. Shukla, learned Counsel countered the submissions by contending that M.P. Panchayat Nirvachan Niyam, 1995 has no application because the same is meant for general panchayat elections. He further contended that for the purpose of no confidence motion Avishwas Prastav Niyam, 1994 has been made and would alone govern the situation. This submission is not impressive at all. Nirvachan Niyam, 1995 are quite exhaustive and they would also cover the meetings of no confidence with regard to various things for which no provision has been made in the Avishwas Prastav Niyam, 1994. Illustratively, Chapter X of M.P. Panchayat Nirvachan Niyam, 1995 provides for counting of votes. Votes exercised in the meeting of no confidence are also liable to be counted wherefore there is no specific provision in Avishwas Prastav Niyam, 1994 and although counting is required to be made even in the meeting for no confidence. Thus, it cannot be said that M.P. Panchayat Nirvachan Niyam, 1995 will not apply to the meeting of no confidence motion with regard to the procedure which is liable to be observed in such meetings.” 17. In the case of Institute of Chartered Accountants of India v. Vimal Kumar Surana : (2011) 1 SCC 534 , the issue was that Chartered Accountant Act, 1949 does not specify the procedure to be followed for punishing a person who is alleged to have acted in contravention of sections 24, 24-A and 26 as the Act does not specify the procedure to be followed for punishing such person. The apex Court has held that in absence of such provision, the procedure prescribed in Criminal Procedure Code has to be followed for enquiry, investigation and trial of the complaint. 18. In the case of Sardar Amarjit Singh Kalra v. Pramod Gupta and others : (2003) 3 SCC 272 , the apex Court has held that laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citÁen under personal, property and other laws. 19. In the case of Arvind Construction Co. (P) Ltd. v. Kalinga Mining Corporation : (2007) 6 SCC 798 , the apex Court has held that there is also the principle that when a power is conferred under a special statue and it is conferred on an ordinary Court of the land, without laying down any special condition for exercise of that power, the general rules of procedure of that Court would apply. Para 15 of the aforesaid judgment is reproduced below : “15. The argument that the power under section 9 of the Act is independent of the Specific Relief Act or that the restrictions placed by the Specific Relief Act cannot control the exercise of power under section 9 of the Act cannot prima facie be accepted. The reliance placed on Firm Ashok Traders and anr. v. Gurumukh Das Saluja and ors. [ (2004) 3 S.C.C. 155 ] in that behalf does not also help much, since this Court in that case did not answer that question finally but prima facie felt that the objection based on section 69 (3) of the Partnership Act may not stand in the way of a party to an arbitration agreement moving the Court under section 9 of the Act. The power under section 9 is conferred on the District Court. No special procedure is prescribed by the Act in that behalf. It is also clarified that the Court entertaining an application under section 9 of the Act shall have the same power for making orders as it has for the purpose and in relation to any proceedings before it. Prima facie, it appears that the general rules that governed the Court while considering the grant of an interim injunction at the threshold are attracted even while dealing with an application under section 9 of the Act. Prima facie, it appears that the general rules that governed the Court while considering the grant of an interim injunction at the threshold are attracted even while dealing with an application under section 9 of the Act. There is also the principle that when a power is conferred under a special statute and it is conferred on an ordinary Court of the land, without laying down any special condition for exercise of that power, the general rules of procedure of that Court would apply. The Act does not prima facie purport to keep out the provisions of the Specific Relief Act from consideration. No doubt, a view that exercise of power under section 9 of the Act is not controlled by the Specific Relief Act has been taken by the Madhya Pradesh High Court. The power under section 9 of the Act is not controlled by Order XVIII Rule 5 of the Code of Civil Procedure is a view taken by the High Court of Bombay. But, how far these decisions are correct, requires to be considered in an appropriate case. Suffice it to say that on the basis of the submissions made in this case, we are not inclined to answer that question finally. But, we may indicate that we are prima facie inclined to the view that exercise of power under section 9 of the Act must be based on well recognÁed principles governing the grant of interim injunctions and other orders of interim protection or the appointment of a receiver.” 20. In view of the above, if the Rules of 1994 and Rules of 1995 are applicable to section 21, then these provisions can also be apply to section 21-A of the Panchayat Act. Therefore, in order to give effect to the provisions of section 21-A, the authorities can take aid and support of the procedure prescribed under section 21 of the Panchayat Act as well as Rules of 1994 and Rules of 1995 which are very exhaustive. In the conjoint reading of section 21, section 21-A of the Panchayat Act and the Rules of 1994 and Rules of 1995, the complete procedure is there for giving effect to the provisions of section 21-A of the Panchayat Act. That by doing so no prejudice would cause to respondent No. 5. That procedure would be fair enough to protect the interest of the respondent No. 5. 21. That by doing so no prejudice would cause to respondent No. 5. That procedure would be fair enough to protect the interest of the respondent No. 5. 21. That the Director of Panchayat by his order dated 15.1.2018 has virtually redundant or otiose the provisions of section 21-A of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993. He is not competent authority to pass such type of order, therefore, that order is not liable to given effect in the pending proceedings before the Sub-Divisional Officer against respondent No. 5.The no confidence motion or demand of recall of officer bearers is always based on allegation of misuses of power and embezzlement funds etc. and same cannot be dropped in this manner. 22. So far as the objection raised by learned senior counsel appearing for respondent No. 5 that 1/3rd members of Gram Sabha have not supported the motion against respondent No. 5 is concerned, it is for the SDO to consider such an objection before proceeding for secret ballot. If the resolution is not supported by 1/3rd members, the SDO may drop the proceedings because under section 21-A of the Panchayat Act, it is mandatory that the motion of recall shall be initiated unless a notice is signed by 1/3rd members of the Gram Sabha and presented to the prescribed authority. Let SDO to consider this objection also and take a decision before proceeding further. 23. In view of the foregoing discussion, this petition deserves to be and is hereby allowed to the extent indicated above. The impugned orders dated 4.1.2018 and 15.1.2018 are hereby quashed. 24. With the aforesaid, this petition stands allowed and disposed of. No order as to costs.