Madhya Pradesh High Court
Prabhulal vs Gram Panchayat, Guradiya Deda And Ors. on 25 April, 1986
Equivalent citations: AIR1986MP200, AIR 1986 MADHYA PRADESH 200, (1986) JAB LJ 730
ORDER
1. The petitioner was elected to the post of Sarpanch of Gram Panchayat Guradiya Deda, District Mandsaur. In a meeting of the Panchayat held on 29-8-1983 a no-confident^ resolution was passed against the petitioner. According to the petitioner, he preferred an appeal challenging the said resolution before the Sub-Divisional Officer. The appeal was dismissed on 28-11-1983 vide Annexure-B. Aggrieved thereby the petitioner filed this petition under Article 226 of the Constitution, for quashing the resolution Annexure-A.
2. The case was heard by a Division Bench which by separate orders expressed that the matter be referred to a larger Bench as it involves a re-consideration of an earlier order of Division Bench of this Court in Sojharmal Sawandas v. Municipal Council, Kharsia, 1964 MPLJ 293. Accordingly this Full Bench was constituted by Hon'ble the Chief Justice, In the petition the impugned resolution dt 29-81983 was challenged on different grounds, but at the time of hearing before us learned counsel for the petitioner confined his challenge to the no confidence resolution on the ground that it was passed by voting by secret ballot 3-4. Annexure-A is the copy of the minutes of the meeting dt. 29-8-1983 of the said Gram Panchayat in which no confidence resolution was passed against the petitioner. In this document it is specifically mentioned as follows :
^^vfo'okl izLrko gsrq mifLFkr iapksa ls xqIr ernku v/;{k }kjk gLrk{kfjr ifpZ;ka tkjh djds djk;k x;kA mifLFkr iapks dks] vfo'okl izLrko foi{k esa er nsus ds fy;s " fu'kku yxkus ds&&i{k esa + dk fu'kku yxkus gsrq le>k bZ'k ds ernku djk;k ftles ifj.kke fuEukuqlkj jgkA** However, in the return filed on behalf of respondent to 4, it has been mentioned "that the vote of no confidence was passed unanimously by all the nine present panchas attending the meeting who voted in favour and support of the no confidence motion initially by show of hands. This initial voting by show of hands was however subsequently confirmed by secret balloting. This factual-position that the voting was in point of fact initially by show of hands and then by balloting is confirmed by the panchas including the Secretary of the Panchayat (respondent 2) in their solemn affirmation made on oath in the affidavits sworn by them. The respondents have also filed affidavits in support of that plea. The omission in the minutes of the meeting (Annexure-A) with regard to the initial voting being by show of hands has been explained by saying that it was possibly a bona fide inadvertence on the part of the Presiding Officer.
5. Section 18 of the M.P. Panchayat Act, 1981 (hereinafter referred to as 'the Act') is as follows: --
" 18. No confidence motion against Sarpanch or 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 two-thirds of the panchas present and voting, and such majority is more than one-half 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 with effect from the date immediately next after the date on which such resolution is passed.
(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 right to speak at or otherwise to take part in the proceeding of the meeting."
6. In the return the rules referred are M.P. Gram Panchayat (No-confidence Motion against Sarpanch or Up-sarpanch) Rules, 1979. Which according to the respondents would be applicable. However, at the time of hearing it was stated that the rules that would be attracted in the instant case would be Madhya Pradesh Gram Panchayat (No-confidence Motion against Sarpanch or Up-Sarpanch) Rules, 1981 (hereinafter referred to as 'the Rules'). These rules provide for the notice of the motion of no-confidence, convening of the meeting, appointment of Presiding Officer, maintenance of proceedings and about communication of the decision. Rule 6 of these rules is as under : --
"Minutes of proceedings.-
(1) Minutes of the proceedings at the meeting of the Gram Panchayat shall be drawn up by the Presiding Officer and recorded in the book kept for the purpose. The Presiding Officer shall also sign it (2) The minutes of proceedings recorded under Sub-rule (1) shall include :
(i) the names of the office-bearers present;
(ii) the decision of the meeting on the motion of no-confidence; and
(iii) when such decision is not unanimous, the number of votes and names of office-bearers voting for and against such motion and the names of those who have remained neutral."
7. Before proceeding any further, we may first dispose of the plea of the respondents that the voting in fact was initially by show of hands in support of which affidavits of some panchas including the Secretary have been filed. Admittedly, in the minutes of the proceedings dt 29-8-1983 there is no mention of the initial voting having taken place by show of hands. Contrary to this, the minutes of the proceedings of which Annexure A is the copy, clearly go to show that the voting was by secret ballot Apart from the question whether in. cases like this, parties can be permittted to lead additional evidence by way of affidavit or otherwise, in the instant case we are not at all satisfied that the voting had initially taken place by show of hands. That plea of the respondents 1, 2 and 3 has, therefore to be rejected.
8. The question thus remains to be considered is whether the Act and the relevant Rules contemplate voting by secret ballot when the resolution of no-confidence comes up for consideration. Section 18(1) of the Act which has been referred to above inter alia uses the word 'voting' and does not give out that the voting has to be by ballot. Rule 6(2)(ii) of the Rules requires that in the minutes the number of votes for and against such motion of no-confidence and names of those who have remained neutral have to be recorded.
9. In Shankarlal v. State of M.P., 1975 Jab LJ 386, it was contended that the voting had to be by secret ballot instead of by show of hands The Division Bench with regard to the said contention in one of the paras (p. 388) of the order observed as follows :--
"The next reason given by Shri Garg is also without merit and Shri Garg once again pointed out very fairly that the point is concluded against him by two decisions of the Court in Sojharmal Sawandas v. Municipal Council, Kharsia, 1964 MPLJ 293 and Ramdas Surjan Singh v. State of M.P., 1974 MPLJ 300 : (AIR 1974 Madh Pra 176). The requirement contained in Rule 7 of the Rules of entering the names of Panchas voting for and against suc,h motion and of those remaining neutral being in the minutes of the proceedings, is sufficient to negative this argument. This contention also, therefore, fails." -
10. Another Division Bench of this Court in Ramdas v. State of M.P., 1974 Jab LJ 330 : (AIR 1974 Madh Pra 176) had also examined more or less a similar, question. A perusal of this decision indicates that there was no voting by ballot. The challenge to the passing of the no-confidence resolution was based on the ground that the voting did not lake place by show of hands. In this context, the Division Bench held that 'the voting by show of hands means counting the persons present entitled to vote and who choose to vote by holding up their hands. What is material is to ascertain the wishes of the Panchas present at the meeting whether they vole for and agaiast the resolution. This can be ascertained by show of hands or by expression of opinion of the individual person, present and entitled to vote. In this case 9 panchas were present and they were the persons who had moved and signed the motion of no confidence. They participated in the meeting held deliberations over the motion of 'no-confidence' and unanimously voted in its favour. There was thus unanimous declaration by the present panchas in favour of passing the 'no confidence motion'. This decision cannot be read to lay down that voting even by ballot would be permissible. It is significant to note that it was found that the panchas present had participated in the meeting and had also held deliberations over the motion of no confidence. It was as a result of those deliberations that the motion of no confidence had come to be passed. Thus no element of voting by secret ballot was involved. The only contention was that instead of raising hands, the panchas present had unanimously voted in favour of the resolution, after the deliberations.
11. The Division Benches which decided the cases of Ramdas (AIR 1974 Madh Pra 176) (supra), and Shankcrlal (1975 Jab LJ 386) (supra) referred to an earlier Division Bench decision of this Court in Sojharmal Sawandas v. Municipal Council Kharsia, 1964 MPU 293. That case was under the M.P. Municipalities Act, 1961. As the decision mentions, the said Act nowhere provided that voting on any question, motion or resolution of no-confidence shall be by ballot i.e. by secret voting. Section 47(1) had also prescribed the majority that must exist for the passing of motion of no confidence. It did not say anything as to the mode which could be pursued for voting on a motion of no confidence. Section 62 of the said Act which has been reproduced in the decision is as under :--
"62.(1) Minutes of proceedings at each meeting of a Council or any of its Committee shall be drawn up in Hindi written in Devnagri Script and recorded in a book to be kept for the purpose separately for the Council and each of its Committees and shall be signed by "the Chairman of the meeting or of the next ensuing meeting.
(2) The minutes of the Council shall be published in the manner prescribed and shall at all reasonable times and without charge be open to the inspection by any inhabitant of the Municipality.
(3) The minutes of the proceedings recorded under Sub-section (1) shall include-
(i) the names of the Councillors present;
(ii) the decision of a meeting on every question considered; and
(iii) when such decision is not unanimous, the number of votes and the names of Councillors voting for and against such question and the names of those who have remained neutral, whether votes have been taken by division or otherwise.
12. A perusal of the provision of the Act and the relevant rule of the Rules with the aforesaid provisions of the M.P. Municipalities Act, would show that they are similar. The Division Bench in Sojharmars case (supra) on a consideration of Section 62(3) which has been reproduced above observed as follows : --
"According to Sub-section (3) of Section 62, where on any subject the decision is not unanimous and there is voting, then the number of votes and the names of the Councillors voting for and against such question and the names of those who remain neutral have to be recorded in the minutes. The minutes of the council are open to inspection by any inhabitant of the Municipality. Section 62 clearly applies to the minutes of the proceedings of a meeting especially convened for discussion on a motion of no confidence. The result of its application is that the minutes of the proceedings of a meeting at which a no confidence motion is moved and put to vote must show the names of councillors voting for and against the motion. This requirement would be impossible of compliance if voting on a motion of no confidence were to be by the method of ballot."
It has further been laid down in the same paragraph that Section 62 of the M.P. Municipalities Act impliedly prohibits such a method of voting. It was further observed that the Municipalities Act, 1961 far from expressly or impliedly authorising the mode of voting by ballot prohibits that mode as a necessary implication of Section 62. The Division Bench in Sojharmal's case (supra) had also laid down that the settled rule in regard to mode of voting is that where a statute prescribes the mode in which the vote of a body is to be taken, then that method must be followed and failure to comply with the same is fatal to any action taken and that if the mode of voting is not prescribed then the method of voting by show of hands, followed if necessary by poll must prevail. Their Lordships had also referred to some English decisions supporting that view. It is, therefore, not necessary to go into those decisions.
13. Shackleton on the Law and Practice of Meetings (1977 Edn. page 49) in Chapter 7 relating to voting noted that "The common law method of determining votes is by show of hands, and this method applies where there are no regulations or enactments to the contrary. Other methods of voting are provided for by statute, or in the case of registered bodies, by the regulations affecting them." There is no doubt and as is apparent from what has been stated above, neither Section 18 of the Act nor the Rules provide for the method of voting. If in a meeting held on a motion of no confidence, the voting takes place by secret ballot, Rule 6(2)(ii) cannot be complied with and this is how there would be a non-compliance of that part of Rule 6 which would result into defeating the intention of the framers of the Rules. As already pointed out in Ramdas' case (AIR 1974 Madh Pra 176) (supra) notwithstanding the voting having not taken place by show of hands, Rule 6(2)liii) could be complied with. That apart no question about the non-compliance of the relevant Rule 7(2)(iii) as has been referred in that case which is similar to Rule 6(2)(iii) of the Rules arose for consideration in that case. Rule 6(2)(iii) of the Rules cannot be interpreted to mean thai where there is unanimity in support of the resolution of no-confidence, voting by secret ballot may be permissible, but where there is no unanimity, the voting by secret ballot would stand rejected as being contrary to law, for the reason that Rule 6(2)(iii) cannot be complied with. It being the salutary rule that in absence of any regulation or enactment to the contrary the method of determining votes is by show of hands, that method has to be adopted. Something which has been prohibited by the Act or the Rules directly or by implication, if done, would invalidate the act.
14 It is further significant to note that the law relating to Panchayats has been amended and enacted from time to lime, the last and which is in force being the present Act of 1981. Inspite of the law laid down by different Division Benches in the cases of Sojharmal (1964 MPLJ 293} (supra), Ramdas (AIR 1974 Madh Pra 176) (supra) and Shankarlal (1975 Jab LJ 386) (supra), the provisions with regard to the resolution of no confidence motion in the Act and the Rules, relating to the question which is in issue in the presenl case before us have more or less remained the same. The relevant provisions of the Act and the Rules cannot be construed in a manner which would defeat the intention of the framers of the law. That being so the earlier decisions as have been referred to above still hold good.
15. It has, therefore, to be held that the passing of the no-confidence resolution by secret ballot which as held earlier is prohibited was clearly contrary to law. The mere fact that in the minutes it has been mentioned that all the nine panchas who were present, voted by secret ballot in support of the resolution, would not validate the result which has been obtained by a procedure which is not only contrary to law, but is also prohibited by law.
16. Learned Government Advocate relied on a decision of this Court in Motilal Ramchandra v. Gram Panchayat Jamburdisarvar, (M.P. No. 586/81 decided on 6-9-1982, 1983 MPLJ SN 8) in support of the contention that since the majority of the panchas had supported the resolution of no confidence, this Court should refuse interference under Article 226 of the Constitution. In Motilal's case (supra), the election was challenged on the ground that notice of the meeting was not served personally on the sarpanch. As it appears, the stand of the Gram Panchayat was that the notice of the meeting was personally tendered to the sarpanch, but he asked his son to sign the notice and thus the notice had the signatures of the petitioner's son. This was taken to be a disputed question of fact which the learned Judges did not consider fit to deal in detail in a petition under Article 226 of the Constitution. It is further appearejit that in the circumstances it had been found that at best it would be some irregularity in the service of the notice to the petitioner and for this reason the interference was refused. This decision cannot be taken to have laid down that in all cases where motion of no confidence is passed by majority then whatever be the illegality, the High Court should refuse to interfere in a petition under Article 226 of the Constitution. By refusing to exercise our powers under Article 226 of the Constitution, we cannot uphold the passing of the resolution which has been done in a manner contrary to law and by following a procedure which is prohibited.
17. Consequently, this petition is hereby allowed. The impugned resolution dt. 29-8-1983 (Annexure-A) of the Gram Panchayat Guradiya Deda is hereby quashed. In the circumstances, there shall be no order as to the costs of this petition. The amount of security deposit, if any be refunded back to the petitioner.