Madhya Pradesh High Court
Jagdish Prasad Bhunjwa vs The State Of Madhya Pradesh And Ors. on 15 January, 1996
Equivalent citations: AIR1997MP184, 1997(1)MPLJ512, AIR 1997 MADHYA PRADESH 184, 1996 COOPTJ 370, (1996) JAB LJ 335, (1997) 1 MPLJ 512
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT A.K. Mathur, Ag, C.J.
1. All the aforesaid writ petitions involve common question of law; therefore, they are disposed of by this common Order.
2. For convenient disposal of all these writ petitions, the facts given in Jagdish Prasad Bhunjwa v. State of M.P. (WP 3141/95) are taken into consideration.
3. The petitioner in the aforesaid writ petition has challeged the validity of Section 21 of the M.P. Panchayat Raj Adhiniyam, 1994 and have also challenged the motion of no-confidence against the elected Sarpanch and Upsarpanch being unjust, unreasonable, arbitrary and violative of Article 14 of the Constitution of India.
4. The brief facts giving rise to this petition are thus : The petitioner was elected as Sarpanch directly by the voters of Gram Panchayat-Arkandi, Tehsil-Maihar, District-Satna as provided under Section 17 of the M.P. Panchayat Raj Adhiniyam, 1994 (hereinafter referred to as the 'Act of 1994'). It is alleged that under Sub-section (1) of Section 17 of the said Act, a Sarpanch is to be elected by the person whose names are included in the list of voters of Gram Panchayat. Therefore, as per the provisions, the petitioner was elected directly as Sarpanch by the voters of the Gram Panchayat-Arkandi. Likewise, there is a provision under Section 17(5) of the Act, Up-Sarpanch is to be elected from amongst the elected Panchas. Thus, the election of Up-Sarpanch is indirect and is to be elected by the Panchas whereas the election of Sarpanch is direct and is to be elected by the voters of the Gram Panchayat. It is alleged that under Section 21 of the Act, motion of no confidence against the Sarpanch and Upsarpanch is to be passed by the elected Panchas 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 members of Panchas constituting the Gram Panchayat for the time being. A notice was issued on 4-9-1995 by the respondent-Sub-Divisional Officer calling for the meeting of the Gram Panchayat for consideration of no confidence motion, which was moved by 7 Panchas. The meeting was fixed on 11-9-1995. It is alleged that some representations were made that the Sarpanch has been elected directly by voters therefore, vote of no confidence cannot be considered by the elected Panchas of the Gram Panchayat. It is alleged that the voters of the village-Arkanadi requested that the petitioner should continue as Sarpanch for five years. But it is submitted that the total voters of the Village-Arkandi is about 554 out of which a memorandum was signed by 387 voters. A meeting of the Gram Panchayat which was convened by the Sub-Divisional Officer, was adjourned for the reasons that the notice was issued on 11-9-1995 by the respondent, S. D. O. adjourning the meeting and further directed the Secretary of the Gram Panchayat for issuance of fresh notice as per Rules. Therefore, the petitioner has filed this petition challenging the validity of Section 21 of the Act.
5. The Principal submission of the learned counsel for the petitioners in all the batch of petitions is that once the Sarpanch has been declared elected directly then he cannot be removed by way of no confidence motion through the elected Panchas i.e. directly elected Sarpanch cannot be removed by Panchas by indirect method of passing of no confidence by the elected Sarpanch of the Gram Panchayat. It is also submitted that the Constitution does not provide the right to recall except as provided under other provisions of the Act; therefore, Section 21 of the Act is ultra-vires, arbitrary and violative of Article 14 of the Constitution of India. It is submitted that in Article 243 of the Constitution, there is no provision for recalling any panch; therefore, Section 21 of the Act is also violative of Article 243 of the Constitution of India.
6. In order to appreciate the controversy which has been raised; it may be relevant to mention the history of this enactment, The M.P. Panchayat Act for the first time came in 1962, by Act No. 7/62 with effect from 12-7-1962. In this Act, it was provided that every Gram Panchayat shall be composed of elected members and co-opted members. Section 24 of the Act of 1962 provided that motion of no confidence can be passed against the Sarpanch and Upsarpanch then this Act was further amended by Act No. 4/78 called the M.P. Panchayat (Amedment) Act. 1978. By this Amendment Act, Section 21(1) was introduced that every Gram Panchayat shall have a Sarpanch who shall be (elected) by the persons registered in the list of voters for the Gram Sabha and it further provided that motion of no confidence against the Sarpanch and Upsarpanch can be passed by majority of more than one half of the total members of the Panchas constituted in the Gram Panchayat and on such motion being ratified by the Gram Sabha by a majority of more than one half of total number of persons voting on such motion and in such manner as may, be prescribed. Then again, M.P: Panchayat Act, 1981 came into force, i.e. Act No. 35/81. Section 11 of the Act of 1981 provided that every Gram Panchayat shall consists of-pan-chas elected from the wards, and panchas co-opted. Section 18 provided that motion of no confidence against the Sarpanch and Up-sarpanch shall be passed by Gram Panchayat by a resolution passed by majority of not less than two-third of the Panchas present and voting, and such majority is more-than one-half of total number of Panchas constituting the Gram Panchayat for the time being in force. Then another Act No. 35/81 was amended by M.P. Panchayat (Sanshodhan) Adhiniyam, 1988, i.e. Act No. 26/88. According to Section 11 of this Amendment Act provided that panchas being elected from the wards and likewise Sarpanch. Therefore, Sarpanch was to be elected directly. Then no confidence motion cannot be initiated within one year from the date on which the Sarpanch or Up-sarpanch enter their respective office and likewise six months preceding the date on which the terms of the office of the Sarpanch is to expire. It further contemplated that one year from the date on which previous motion of no confidence was rejected, then it cannot be re-introduced. Then again M.P. Panchayat Raj Adhiniyam, 1990 came into force by Act No. 13/90. This also provided a direct election of Panchas and Sarpanch and no confidence motion could be passed by the Gram Panchayat by a resolution of majority not less than three-fourths of the Panchas present in voting and such majority is more than two-third of the total members of panchas entitled to vote. Then again M.P. Panchayat Raj Adhiniyam, 1994 came into force by Act No. 1/94 and in this also, Panchas and Sarpanch is to be directly elected under Section 17 and Sarpanch can be removed from office after passing the vote of no-confidence by the Panchas under Section 21 of the Act.
7. Resume of the amendments made from time to time, it would appear that it was only in 1978 the Sarpanch was directly elected and motion of no-confidence could be passed by the Gram Panchayat, but it was to be ratified by the Gram Sabha by majority. But subsequently, no such provision was made for ratification of directly elected Sarpanch by Gram Sabha.
8. Now, we may come to the Act of 1994 which was passed by the State Legislature on account of 74th Amendment in the Constitution whereby Part IX was introduced By this amendment in the Constitution, a new Chapter was inserted by providing greater autonomy to Panchayat and to strengthen the roots of democracy at the grass root by self-governance. Article 243A of the Constitution says that a Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may by law provide. Article 243B deals with Constitution of Panchayats, which reads as under:
"A243-B. (1) There shall be constituted in every State, Panchayat at the village intermediate and district levels in accordance with the provisions of this part.
(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs."
Article 243-C deals with the Composition of Panchayats, which reads as under:
"A243-C. (1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats:
Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall so far as practicable, be the same throughout the State.
(2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and; for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall so far as practicable, be the same throughput the Panchayat area.
(3) The Legislature of a State may, by law, provide for the representation --
(a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level;
(b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level;
(c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level, in such Panchayat;
(d) of the members of the Council of States and the members of the Legislative Council of the State, where they are registered as electors within --
(i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level;
(ii) a Panchayat area at the district level, in Panchayat at the district level.
(4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in meetings of the Panchayats.
(5) The Chairperson of--
(a) a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and
(b) a Panchayat at the intermediate level or district level shall be elected by and from amongst, the elected members thereof."
Therefore, so far as the election of the Chair-person at the intermediate level or district level is concerned, it is provided that he shall be elected from the members i.e. it is by way of indirect election. As against this, Chairperson: of the Panchayats at the village level is concerned, it has been left at the discretion of the State Legislature. Article 243E provides that duration of Panchayat shall be for five year and Article 243F deals with the disqualification for memberships. Rest of the provisions of this Article have no relevance so far as the decision in the present case is concerned; therefore, they need not be referred.
9. In view of above introduction of the Part-IX, the Panchayats under Article 243 of the Constitution, the State Legislature passed a new Act called M. P. Panchayat Raj Adhiniyam, 1994, and this Act more or less adopted all the definitions which have been given in the Article 243 of the Constitution. Like, Gram Panchayat has been defined in Section 2(vii) which means a Gram Panchayat established under Sub-section (1) of Section 10. Gram Sabha has been defined in Section 2(viii) which is more or less same as defined in Article 243A of the Constitution. Section 2(xxv) defines Sarpanch and Upsafpanch which means the Sarpanch and Upsarpanch respectively of a Gram Panchayat, as the case may be. Chapter-II of the Act deals with Gram Sabha which deals with the list of voters of the village, registration of voters of village and then meeting of the Gram Sabha. Chapter-Ill deals with establishment of Panchayat. Section 9 deals with duration of Panchayat and Section 10 deals with the establishment of Gram Panchayat, Janapada Panchayat and Zila Panchayat. Section 12 deals with division of Gram Panchayat into wards and Section 13 deals with Constitution of Gram Panchayat. Section 14 deals with the qualification to vote and to be a candidate. Section 17 deals with the election of Sarpanch and Upsarpanch which is relevant for our purposes. Section 17 of the Act reads as under:--
"Section 17 : Election of Sarpanch and Upsarpanch.
(I) In every Gram Panchayat, there shall be a Sarpanch and an Upsarpanch. A person who --
(i) is qualified to be elected as Panch;
(ii) is not a member of either House of Parliament or member of State Legislative Assembly; and
(iii) is not Chairman or Vice-Chairman of Co-operative Society:
shall be elected as Sarpanch, subject to provisions of Sub-sections (2), (3) and (4) by persons whose names are included in the list of voters of the Gram Panchayat area in such manner as may be prescribed, x x x x x Section 20 deals with the first meeting and term of office, and Section 21 deals with no-confidence motion against Sarpanch and Upsarpanch, which is relevant for our purposes, which reads as under:
"Section 21: No-confidence motion against Sarpanch and Upsarpanch --
(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 at 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 Upsarpanch 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 Upsarpanch shall not preside over a meeting which a motion of no-confidence is discussed against him. Such meeting shall be not 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 Upsarpanch, as the case may be, shall have a right to speak at, or otherwise to take part in, proceeding of the meeting.
(3) No-confidence motion shall not lie against the Sarpanch or Upsarpanch within a period of--
(i) one year from the dale on which the Sarpanch or Upsarpanch enter their respective officer;
(ii) six months preceding the date on which the terms of office of the Sarpanch or Upsarpanch as the case may be, expires;
(iii) one year from the date on which previous motion of no-confidence was rejected.
Section 36 of the Act deals with disqualification for being office bearer of Panchayat and Section 40 deals with removal of office bearers of Panchayat. In this background, we have to examine respective arguments raised by the learned counsel for the parties.
10. As per Article 243C so far as the intermediate level or district level is concerned, the Chairperson can be removed by the elected members of that body; but so far as the Chairperson of the Village Panchayat, i.e., Gram Sabha, is concerned, a discretion has been left to the Stale Legislature and the State Legislature in the present case has provided for election of the Sarpanch directly, but provided a vote of no-confidence by indirect way i.e. by the elected Panchas. It may be relevant to mention here that when 73rd Amendment of Constitution was introduced amending Article 243 of Constitution, a Joint Parliamentary Committee was constituted and on the recommendation of that, this 73rd Amendment in the Constitution was introduced and the matter was considered by that Committee and the report of that Committee was published in Gazette of India (Extraordinary) Part-II dated 14-7-92 and in that for the provisions of clauses (5) and (6) of Article 243C, the following observation was made:--
"The Committee further feel that the Chairperson of a Panchayat at the village level only should be chosen by direct election and that the Chairperson of a Panchayat at the intermediate level or district level should be chosen by indirect election. Where the Chairperson of a Panchayat at the village level has been chosen by direct election, he shall not be removed from that office unless the Panchayat has made a recommendation to the Gram Sabha to that effect after adopting a motion by a majority of the total number of elected members of the Panchayat and by a majority not less than two-thirds of the members present and voting and the Gram Sabha at the specially convened meeting after a notice of not less than fifteen days has passed a resolution for such removal by a majority of its members present and voting, so however, that not less than fifty per cent of the members are present at such meeting. If the meeting cannot be held for want of quorum, the Panchayat's motion shall lapse and no further motion for removal of the Chairperson shall be brought within one year of the date of adoption of the previous motion. Similarly, where the Chairperson of a Panchayat has been chosen by indirect election, he shall not be removed from that office unless the Panchayat has passed a resolution to that effect by a majority of the total number of the elected members of the Panchayat and by a majority of not less than two-thirds of such members present and voting."
Therefore, at that time, when the Joint Committee was considering the said Bill, they also provide that whenever the Sarpanch elected directly then his removal should also be by a direct method, i.e., when the motion of no-confidence was passed by the Panchas it needs to be ratified by the Gram Sabha by a majority. The State Legislation in its wisdom has provided that motion of no-confidence for Sarpanch who is directly elected, can be passed by an indirect method i.e. by the elected Panchas present and voting. No justification has been pointed out by the State that why this was resorted to. However, it is within the competence of the State Legislature who is well aware of the conditions obtaining in the State but it needs only to be mentioned that the Joint Committee was conscious of this problem and they provided that whenever there is a direct election of such person, then removal is also by a direct method. But the State Legislature in its wisdom has not provided direct method of removing the Sarpanch by ratifying the motion of no-confidence by the Gram Sabha.
11. We have to examine whether this method adopted in the Act is proper or not,
12. Shri R. K. Gupta, Dy.A.G., for the respondents has submitted that the right to be elected is not a fundamental right, but it is a statutory right and he submitted that the Court cannot interfere in such a matter.
13. The M.P. Panchayat Raj Adhmiyam, 1994, which has been passed by State Legislature in pursuance of the 73rd Amendment of the Constitution, it appears that the Parliament in its wisdom thought it proper to give more weightage to the people at grass root level. But the question before us is only regarding no-confidence motion against the Sarpanch that whether Section 21 is arbitrary or violative of Article 14 of the Constitution of India or not. So far as providing the method of election and motion of no-confidence being passed is concerned, it is for the State Legislature to enact the law as this area has been left upon by Sub-clause (5) of Article 243C and the reasons appeared to be that since the Gram Sabha is in the lowest in the heirarchy of the three tier system, the Parliament has thought it proper that the State Legislature may legislate on this aspect looking to the geographical and physical condition of the area. The State Legislature in its wisdom Thought it proper that for removal of the Sarpanch by vote of no-confidence shall be the proper by indirect method of being voted out by the elected Panchas. After all, elected Panchas are also the voice of the whole Gram Sabha because it is Gram Sabha who has directly elected them. Therefore, when motion of no-confidence is passed against such Sarpanch, it will be an indirect lack of confidence by Gram Sabha as all Panchas are elected representative of the Gram Sabha. It is a different matter that the Legislature could have provided one more check by seeking ratification of all the members of the Gram Sabha being smaller body, but that is no justification for this Court to delve into a realm by the Legislature because the Legislature is the supreme body so far as enacting the law is concerned and Court has only limited role to adjudicate that whether the legislature has over-stepped its limit or not or the provisions are ultra vires of constitution or not. In the present case, the Legislature could have provided a ratification as was done by the Act No. 4/78 where such ratification was provided and such was also commended by the Joint Committee of the Parliament while introducing the Bill for amending Article 243 of the Constitution by 73rd Amendment. But it is still a discretion of the State Legislature as this area has been specifically left open by virtue of Sub-clause (5) of Article 243C of the Constitution. The Constitution has not provided the method by which such Chairperson should be removed. Therefore, there is no justification to strike down a law on the ground that Legislature could have provided a better method of removal of Sarpanch.
14. The next question is that whether such provision of removal by no-confidence, by the elected Panchas can be said to be arbitrary or violative of Article 14 of the Constitution of India. We do not find any such arbitrariness violating of Article 14 of the Constitution of India. This is within the domain of the State Legislature to provide the method of the election of Sarpanch and Upsarpanch and their removal. It may be relevant to mention here that this method of removal by way of no-confidence cannot be compared with the removal of Section 40 of the Act by way of misconduct. Learned counsel has also referred to Ss. 36 and 40 of the Act which lay down disqualification, but they are totally different area where we cannot confuse with the removal of Sarpanch and Upsarpanch by way of no-confidence. Therefore, reference of those provisions in the present context is ' misconceived. It was also canvassed that there is only one method of removal i.e. under Section 40 of the Act. This is also misconceived because that removal is on account of misconduct. It is true that tenure of Sarpanch is fixed for a period of five years but that period of five years can be curtailed by passing of a no-confidence motion. Simply because a Sarpanch has been elected for a period of five years that does not mean that he cannot be removed by motion of no-confidence. It is always open to cut short his tenure if the motion of no-confidence is passed. Therefore the only question is whether the provision of Section 21 providing vote of no-confidence by elected Panchas can cut short the tenure of the Sarpanch who is directly elected by the Gram Sabha for a period of five years. This is for State Legislature to provide that what should be the proper method for removal of a Sarpanch. Simply because, an indirect method has been provided by the State Legislature, it cannot be said that it is violative of Article 14 of the Constitution. It is for the State Legislature to consider that whether the Sarpanch who is directly elected should be removed by the elected Panchas i.e. by indirect method. It cannot be said that his method is bad or illegal as all the Panchas are also elected by the Gram Sabha only and they are supposed to represent the will of the voters of the Gram Sabha. Therefore, it cannot be said that such method is bad or arbitrary so as to strike down being violative of Article 14 of the Constitution. In this connection, a reference may be made to a recent decision of Hon'ble Supreme Court in the case of Mohanlal Tripathi v. Distt. Magistrate, Rae Bareilly, AIR 1993 SC 2042 : (1993 All LJ 994), where some what similar question came up for consideration in the context of the Uttar Pradesh Municipalities Act and in that context, their Lordships held that removal of President by vote of no-confidence this power vested in Board. President whether elected directly by electors or indirectly by Board is immaterial. In that context, their Lordships in para 5 of the judgment, observed :
"The Board is thus visualised as a body entrusted with responsibility, to keep a watch on the President whether elected by it or the electorate. Any arbitrary functioning by the President or disregard of provision of the Statute or acting contrary to the interest of electorate could be known to the Board only. Therefore, it was not only proper but necessary to empower the Board to take action, if necessary. In fact the power of the Board to remove a President by vote of no-confidence under Section 87-A and right of the President to recommend its supersession under Section 47-A(l)(a) are a check on each other's functioning. Comparison with the provisions in Panchayat Raj Act where a Pradhan is removable by the Gram Sabha was odious as a Gram Sabha is a very small body as compared to Municipality. The provision consequently cannot be held to be bad either because the Board is a smaller or different body. Nor it can be characterised as irrational or arbitrary. It would be unrealistic to say so. Any challenge founded on violation of democratic norm thus cannot be accepted."
Therefore, their Lordships of course upheld the indirect method of removal of the President of the Municipality by the members of the Municipality. Though a distinction as was made so far as the Gram Sabha is concerned, the justification given was that it is a smaller body of voters as compared to the municipality. But nonetheless the method of indirect removal of the President by the Board has been found to be not anti-democratic. On the basis of the same reason, it can be said that this indirect method of removal as contemplated under Section 21 of the Act by removing the Sarpanch by vote of no-confidence cannot be said to be anti-democratic and violation of Article 14 of the Constitution of India. However, before parting with this case, we would like to observe that matter needs to be examined by the Competent Body because it is more democratic to get the ratification of the no-confidence motion passed by the elected Sarpanch by the Gram Sabha. Hence, as a result of above discussions, we do not find any merit in this petition and also in the connected petitions. Hence this petition and the connected petitions are dismissed. No order as to costs.