Madhya Pradesh High Court
Shrinarayan Laxman Prasad Tiwari And ... vs State Of M.P. And Ors. on 3 May, 1997
Equivalent citations: 1998(1)MPLJ427, 1998 A I H C 2066, (1998) 1 MPLJ 427 (1998) 1 JAB LJ 124, (1998) 1 JAB LJ 124
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER C.K. Prasad, J.
1. Respondent No. 5 is the Sarpanch of the Gram Panchayat Sanai whereas petitioner No. 1 is the Up-Sarpanch of the said Gram Panchayat and petitioners 2 to 8 are its Panchas. A motion of no-confidence was passed against respondent No. 5 on 21-8-1995. Aggrieved by the passing of the no-confidence motion, respondent No. 5 preferred revision under Rule 5 of the M. P. Panchayat (Appeal and Revision) Rules, 1995 before the Collector, who by its order dated 21-8-1995 set aside the resolution of the no-confidence motion. While doing so, it held that the notice was not despatched by the Secretary to the Panchas according to time fixed under the rules nor separate notice were given to them. This in the opinion of the Collector vitiated the no-confidence motion. Aggrieved by the aforesaid order, petitioner has preferred this writ petition filed under Article 226/227 of the Constitution of India.
2. It is relevant here to state that Rule 3 of the Rules contemplates that the notice of the meeting to consider the no-confidence motion, specifying the date, time and place thereof, shall cause to be despatched by the Prescribed Authority through the Secretary of the Gram Panchayat to every member of the Panchayat concerned, Seven days before the meeting. The Collector has found that the notice was not despatched within the time prescribed under the aforesaid Rules, nor individual notices were given to the Panchas.
3. Shri Kochar appearing on behalf of the petitioner could not point out anything to demonstrate that the aforesaid finding recorded by the Collector is in any way erroneous. However, he submits that in view of the fact that all the Panchas including the Sarpanch having participated in the meeting to consider the no-confidence motion, no prejudice is caused and notwithstanding the fact that notices were not despatched, seven days before the meeting, the no-confidence motion shall not be vitiated on this ground. Accordingly, it is submitted that the Collector committed an error in setting aside the no-confidence motion. In support of the aforesaid submission, learned counsel has placed reliance on a Division Bench Judgment of this Court in the case of Balkrishan Patel v. Brijendra Patel, 1985 MPLJ 332 = 1985 JLJ 522. My attention has been drawn to the following passage of the said Judgment, which reads as follows:-
"It is settled view of this Court that if there is substantial compliance of this provision, a motion cannot be defeated for technical reasons and it is undemocratic to keep a person on the post when he lost majority. This Court in Bansilal Motilal v. Collector, West Nimar, has held that on passing a no-confidence motion against the Sarpanch, the post of Sarpanch is automatically vacated, this effect cannot be arrested even by the operation of the stay order passed by the High Court. Such must be effect when a no-confidence motion is passed in substantial compliance to section 18 of the Act. So, this Court in Motilal Ramchandra v. Gram Panchayat, Jamurdisarvar, 1983 JLJ S.N.(19) has held that when a no-confidence resolution against Sarpanch carried by overwhelming majority, the case is not fit for interference under Article 226 of the Constitution even if there was irregularity in the service of the notice of the majority."
4. In the aforesaid case, the no-confidence motion was sought to be challenged on the ground that there was no valid service of notice about the meeting on five Panchas and in the background of the aforesaid fact, this Court found that no-confidence motion cannot be defeated on technical ground, if there is substantial compliance of the provision. However, in the present case, the ground on which the illegality of the no-confidence motion is challenged is that the notice was not despatched 7 days before the meeting as also the notice was not given to every member of the Panchayat. Accordingly the decision relied on by the learned counsel is clearly distinguishable.
5. Yet another decision, on which the learned counsel for the petitioner has placed reliance is the Division Bench Judgment of this Court in the case of Motilal Ramchandra v. Gram Panchayat, Jamurdisarvar, 1983 JLJ SN19, and my attention has been drawn to the following paragraph, which reads as under:-
"The matter may also be considered from another aspect. The Gram Panchayat consisted of 23 members at the relevant time including the petitioner. In the meeting held on 12-10-1981, 22 members were present. 18 members supported the no-confidence resolution against the petitioner and 4 of them voted against it. The no-confidence resolution was carried by an overwhelming majority. In the circumstances even if there was some irregularity in the service of notice on the petitioner, in our opinion, it is not a fit case, in which interference is called for under Article 226 of the Constitution of India. Petition is dismissed."
In the aforesaid case, irregularity in service of notice was considered immaterial as 22 members out of 23 were present. Irregularity in service in the aforesaid background was considered immaterial. This is not the situation here as such, the authority cited is clearly distinguishable.
6. Rule 3(3) of the Rules, which is relevant for the purpose reads as follows:-
"(3) On receiving the notice under sub-rule (1) the prescribed authority shall satisfy himself about the admissibility of the notice with reference to sections 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 or Zila Panchayat, as the case may be, to every member of the Panchayat concerned seven days before the meetin."
7. A plain reading of the aforesaid provision makes it clear that notice of the meeting to consider the no-confidence motion has to be despatched by the Prescribed Authority through the Secretary of the Gram Panchayat to every member of the Panchayat concerned 7 days before the meeting.
8. In the present case, the notice was not despatched to every member of the Panchayat 7 days before the meeting. The consequence of short period notice, as pointed out by Shri Ruprah came up for consideration before a Division Bench of this Court in the case of Gayasuddin Khan v. Gram Panchayat Tal, 1971 MPIJ 1012, wherein it has been held as follows:-
"In the instant case no notice was given by the Secretary. In fact the annexure to the petitioner shows that the notice was not served by the Secretary. Not only that, but three members as well as the Sarpanch were also not served with notices for the purpose of this no-confidence motion. Even the petitioner himself has not been served. This position has been admitted in the return. If that is so the meeting cannot be said to have been validly convened. In fact we may say that there was no meeting at all. If a person who is not authorised to call a meeting calls one, the meeting is not validly convened even if the members collect. Mere gathering of the persons at the request of an unauthorised person is not a meeting under the rules. There should always be 7 clear day's notice of the meeting. That has also not happened. The importance of this provision is that a vote of no-confidence may not he very lightly passed. There should be opportunity for the Sarpanch or Up-Sarpanch against whom a vote of no-confidence has to he moved to convince the members or to satisfy them that the grounds on which the motion is being moved will have no basis. There should be scope for removal of misunderstanding. That is necessary for all democratic institutions."
In view of the aforesaid Division Bench Judgment of this Court which is clearly on the point, I have no hesitation in holding that the motion of no- confidence passed against respondent No. 5 was not in accordance with law.
9. The writ petition is mainly founded on the ground that the Collector has no revisional power to set aside the motion of no-confidence under Rule 5 of the M. P. Panchayat (Appeal and Revision) Rules, 1995. In support of the aforesaid submission, learned counsel has placed reliance on the Judgment of a learned Single Judge of this Court. Mr. Ruprah appearing on behalf of respondent No. 5 does not dispute the aforesaid legal position that no revision lies before the Collector against the passing of the no-confidence motion, but he submits that the discretionary remedy of writ cannot be involved in favour of the petitioner, as the setting aside the order of the Collector will lead to revival of an illegal resolution. Accordingly it is submitted that it is not a fit case for exercise of jurisdiction under Article 226/227 of the Constitution of India.
10. When the jurisdiction of the Collector was invoked, law was in a fluid state and it came to be settled only after this Court's judgment. Had respondent No. 5 approached this Court, this Court could have interfered with the resolution on the same ground as that assigned by the Collector under its writ jurisdiction. In the background of the aforesaid situation, now I am obliged to consider whether it is a fit case for interference under Article 226/227 of the Constitution of India. The grant of relief under Article 226/227 of the Constitution of India is discretionary one. Power to issue prerogative writs, orders or directions as also power of superintendence over subordinate courts or Tribunals have been conferred on this Court, for advancement of justice. In this context, it is often said that the matter of grant of writ is not a matter of right but of discretion. As held earlier, no-confidence motion passed against respondent No. 5 is illegal and interference with the order of the Collector will lead to revival of an illegal resolution. Accordingly exercise of discretion by this Court instead of sub-serving the ends of justice shall definitely defeat the same. Accordingly, I am not inclined to exercise my discretion in favour of the petitioner.
11. I am fortified in my view from the decision of the Supreme Court in the case of Godde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828, wherein it has been held as follows:-
"In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order, it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samiti. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.
12. For the reasons stated above, I refrain from exercising my discretion. The writ petition stands dismissed. No costs.