Chattisgarh High Court
Majhno Bai vs State Of Chhattisgarh on 24 November, 2022
Author: P. Sam Koshy
Bench: P. Sam Koshy
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 5147 of 2022
Majhno Bai W/o Bahadur Shekhar, Aged About 31 Years, Sarpanch
Gram Panchayat Ghoghar, Tahsil Bagicha, District : Jashpur,
Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh, Sub Divisional Officer (Revenue) Bagicha,
District : Jashpur, Chhattisgarh
2. Poonam Sharma, Panch Of Ward No. 2, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
3. Dinesh Yadav, Up Sarpanch, Ward No. 20, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
4. Roopson Ram, Panch, Ward No. 10, R/o Gram Panchayat, Ghoghar,
Tahsil Bagicha, District : Jashpur, Chhattisgarh
5. Krishna Chouhan, Panch, Ward No. 1, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
6. Jagdish Ram, Panch, Ward No. 4, R/o Gram Panchayat, Ghoghar,
Tahsil Bagicha, District : Jashpur, Chhattisgarh
7. Agantu Ram, Panch, Ward No. 3, R/o Gram Panchayat, Ghoghar,
Tahsil Bagicha, District : Jashpur, Chhattisgarh
8. Premsai Ram, Panch , Ward No. 5, R/o Gram Panchayat, Ghoghar,
Tahsil Bagicha, District : Jashpur, Chhattisgarh
9. Banaye Ram, Panch, Ward No. 7, R/o Gram Panchayat, Ghoghar,
Tahsil Bagicha, District : Jashpur, Chhattisgarh
10. Manzil Panch, Ward No. 8, R/o Gram Panchayat, Ghoghar,
Tahsil Bagicha, District : Jashpur, Chhattisgarh
11.Ruji Tigga, Panch, Ward No. 9, R/o Gram Panchayat, Ghoghar, Tahsil
Bagicha, District : Jashpur, Chhattisgarh
12. Abha Ekka, Panch, Ward No. 12, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
13. Prabha Toppo, Panch, Ward No. 14, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
14. Fulkeriya Toppo, Panch, Ward No. 15, R/o Gram Panchayat,
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Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
15. Shakuntala, Panch, Ward No. 6, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
16. Shalina Khalkho, Panch, Ward No. 17, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
17. Amrita Pradhan, Panch, Ward No. 13, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
18. Nilmani Toppo, Panch, Ward No. 16, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
19. Laxmi Priya, Panch, Ward No. 19, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
20. Anand Sidar, Panch, Ward No. 18, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
21. Dropati Yadav, Panch, Ward No. 11, R/o Gram Panchayat,
Ghoghar, Tahsil Bagicha, District : Jashpur, Chhattisgarh
---- Respondents
For Petitioner : Mr. Awadh Tripathi, Advocate For State : Mr. P. Acharya, P.L. Hon'ble Shri Justice P. Sam Koshy Judgment On Board 24.11.2022
1. Aggrieved by the order dated 17.11.2022 the instant writ petition has been filed. Vide the said order the authorized officer under the Panchayat Raj Adhiniyam has given a fresh date of the meeting of No Confidence Motion on 25.11.2022 against the present petitioner who is an elected Sarpanch of Gram Panchayat Ghoghar, Tahsil Bagicha, District Jashpur.
2. Present is the second round of litigation. The earlier writ petition filed by the petitioner was WPC No. 4724/2022 which got disposed of on 15.11.2022. This Court after considering the submissions made by the petitioner was not inclined to entertain the writ petition and 3 permitted the No Confidence Motion scheduled to be held on 15.11.2022 to be conducted in accordance with law.
3. It is contended that for reasons best known the no confidence motion meeting could not be held as per schedule on 15.11.2022 and the authorities have extended the said meeting and have now fixed it to be held on 25.11.2022 vide order sheet dated 17.11.2022.
4. The contention of learned counsel for petitioner in this regard is that the respondent authorities could not have extended the date as the scheduled date having crossed, the notice of No Confidence Motion stands dropped. If at all if the respondents wanted to hold a fresh meeting, it would have been only by way of a fresh proceeding drawn altogether under Sub Rule 3 of the CG Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch Ke Virudh Aviswas Prastava) Niyam 1994 (hereinafter referred as "the Rules of 1994"). It is the further contention of the petitioner that once when Sub Rule-3 prescribes that No Confidence Motion has to be convened within an outer limit of 15 days and the 15 days having crossed and the No Confidence Motion having not been conducted, the only option available was to have a fresh No Confidence Motion drawn and not by extending the previous motion that was put forth.
5. Learned counsel for petitioner relied upon the decision in the case of Hargovind Johri Vs. Zila Panchayat, 1996 JLJ 231 wherein it has been propounded by the High Court of Madhya Pradesh that since the provision of law mandates the meeting to be convened positively within 15 days, any difference from 15 days would vitiate the entire proceedings. Therefore, in the instant case also the notice to hold the fresh meeting on 25.11.2022 deserves to be set aside/quashed by 4 this Court.
6. Learned state counsel, on the other hand, submits that much water has since flown after the judgment of Madhya Pradesh High Court in the case of Hargovind Johri (supra). The consistent view of the High Court of Madhya Pradesh subsequently and also that of this High Court has been that only because the meeting of No Confidence Motion is held beyond the period of 15 days from the date of receipt of notice would not by itself vitiate the meeting of No Confidence Motion. What is substantively to be looked into is the prejudice that would be caused to the petitioner in the event the meeting of No Confidence Motion is extended for a period beyond 15 days time. State counsel further referring to the impugned order submits that the reason as to why the meeting could not be held as per schedule on 15.11.2022 also is explicitly available on record. He submits that it is not that it was simply adjourned for any trivial issue rather there was a major law and order crisis that had occurred and it became practically impossible to convene the meeting which compelled the authorities to extend the date of meeting to another date i.e. 25.11.2022. This all the more is a strong ground for which the extended date of No Confidence Motion not to be interfered with by this Court.
7. Having heard the contentions put forth on either side and on perusal of records, it would be relevant at this juncture to take note of the judgment of the Madhya Pradesh High Court itself in the case of Dhumadandhin W/o Bundsai Vs. State of Madhya Pradesh and others 1997 (2) MPLJ 175 wherein in paragraphs - 5 & 6 it has been held as under:
"5. In the present case the question which falls for consideration is, as to whether the passing of a no 5 confidence motion beyond a period of 15 days can be said to be vitiated only on this account. Rule 3(3) of the Rules casts a duty upon the prescribed authority to fix the date, time and place of the meeting which shall not be more than 15 days from the date of receipt of the notice. The question therefore, is as to whether failure on part of the prescribed authority to fix the meeting within the time stipulated shall render the motion of no confidence vitiated in the eye of law. Rule 3(3) of the Rules casts duty on the prescribed authority, the members who have given the notice for consideration of the no-confidence motion, has no control over the same. In my opinion, the will of the members in relation to the no confidence motion cannot be defeated on account of inaction of delayed action of the prescribed authority. Holding otherwise, will lead to nullifying the wish of the members on the no confidence motion for an act over which they have no control. In my opinion, Rule 3(3) of the Rules operates in the field of public duty and to hold null and void acts in its neglect work serious injustice to persons who have no control over those who are entrusted with the duty. Accordingly I am of the considered view, that a motion of no confidence passed against the petitioner beyond a period of 15 days from the date of notice cannot be held to be illegal. Accordingly I negative this submission of the learned counsel for the petitioner.
6. There is yet another reason which disentitles the petitioner from the relief sought for in the present writ application. The petitioner did not challenge the notice issued by the Prescribed Authority fixing the date of the meeting beyond 15 days. She took chance and ultimately when the motion of no confidence has been passed against her, she has turned her head and chosen to approach this court, challenging the no confidence motion. In case the petitioner was aggrieved by fixing of a date beyond the period of 15 days from the date of notice, she could have very well approached this court impugning the said notice. She has not chosen to do the same. Further nothing has been shown to demonstrate that the petitioner in any way was prejudiced by holding of the meeting beyond a period of 15 days. These are additional reasons which disentitles the petitioner for the relief sought in the present writ application. By way of abundant caution I may state that in case the meeting is not held within 15 days, the members have the right to approach this court for its compliance and this Judgment may not be construed to have held that the prescribed authority has the discretion to fix the meeting beyond 15 days from the date of receipt of notice. However, the no confidence motion cannot be invalidated on account of the fact that meeting was convened beyond 15 days of the notice. "
8. Similar view has further been taken by the Madhya Pradesh High Court in the case of Muku Bai Vs. State of Madhya Pradesh and 6 others, 1998 (2) MPLJ 661 wherein again the Division Bench of Madhya Pradesh High Court in paragraphs 10 & 11 of the said judgment has held as under:
"10. The next question that arises for consideration is whether the meeting fixed for no confidence motion can be adjourned or not. We have already quoted Section 21 of the Act of 1994. We have also quoted Section 44 of the said Act and the rules framed thereunder. If the meeting of no confidence motion has been convened then can it be adjourned or not. Section 21 of the M. P. General Clauses Act, 1957, which is relevant for our purposes, reads as under:
"Section 21. Power to make, to include, power to add, to amend, vary or rescind orders, etc. - Where, by any Madhya Pradesh Act, a power to issue notification, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanctions and conditions, if any, to add to amend, vary or rescind any notifications, orders, rules or bylaws so issued."
Therefore, invoking Section 21 of the Act of 1957, which enables the authority which passes the orders can revoke, amend, rescind; therefore, the prescribed authority which fixes the date of no-confidence, can adjourn it also. As quoted above Section 21 or Section 44 of the Act or the rules framed thereunder, nowhere prohibit the prescribed authority to adjourn the meeting. Therefore, the meeting of no-confidence motion can be adjourned. It is not right to say that if the meeting has been once convened within the statutory period, then it cannot be adjourned, the Rule 3(3) will not bar it. If it is to be interpreted that if meeting of no confidence is convened within 15 days and on account of law and order problem or for other unavoidable reasons, the motion cannot be debated then the Bar of 15 days under Rule 3(3) will come in the way that the meeting cannot be convened that will amount to shifting the democratic process. Therefore, we hold that under Rule 3(3), the convening of meeting within 15 days is must, it is a mandatory and if the meeting which is convened within 15 days could not proceed because of the reason beyond control of the prescribed authority, it can be adjourned and the bar of Rule 3(3) will not come in the way.
11. In this connection, a reference may be made to the Division Bench decision of this Court given in the case of Gajpatilal Chandrakar v. State of M. P. decided on 21st June, 1995 in W. P. No. 944/95, wherein the question was whether special meeting of the Municipal Corporation Under Section 28 can be adjourned or not. In that case, the Division Bench held that Under Section 28 of the Municipal Corporation Act, Special meeting can be adjourned. After examining the provisions of the 7 Municipal Corporation Act, it was observed :
"This contention has no merit as mentioned above that there is no exception made Under Section 31 that the meeting convened Under Section 28 cannot be adjourned. Hence, we do not find any merit in this argument that the meeting convened Under Section 28 would not be adjourned and consequently, the election of the committees cannot be said to be illegal."
Therefore, it is wrong to say that once the meeting is called for debate of no-confidence motion, it cannot be adjourned. However, the view taken in Hargovind's case (supra), which is contrary to the view taken by the Division Bench, cannot be said to be a good law."
9. In the said judgment the Division Bench of MP High Court has also held that the law laid down by the Single Bench of MP High Court in the case of Hargovind Johri (supra) was not a good law.
10. Keeping in view the judgment of Muku Bai (supra) there is yet another decision of MP High Court in this regard where in the case of Bhulin Dewangan Vs. State of MP and others 2000 (4) MPHT 69 the Full Bench of Madhya Pradesh High Court has in Paragraph -15 held as under:
"15. The general rule is that non-compliance of mandatory requirement results in nullification of the Act. There are, however, several exceptions to the same. If certain requirements or conditions are provided by statute in the interest of a particular person, the requirements or conditions, although mandatory, may be waived by him if no public interest are involved and in such a case the act done will be valid even if the requirements or conditions have not been performed. This appears to be the reason for learned C.K. Prasad, J., in Dhumadhandin v. State of M.P. (1997 (1) Vidhi Bhasvar 49) which was followed by R.S. Garg, J., in Mahavir Saket v. Collector, Rewa (1998 (1) JLJ 113) for holding that mere non-compliance of first part of the rule in fixing a meeting beyond the prescribed days of the motion of no-confidence would not invalidate the whole proceedings. In case of Dhumadhandin (supra), the Sarpanch did not question the validity of the notice calling the meeting of no-confidence and in fact had taken chance by facing the motion. R.S. Garg, J., in Mahavir Saket (supra) placed reliance on the decision of C.K. Prasad, J., in Dhumadhandin (supra) to up-hold the passing of the no-confidence motion in the adjourned meeting as in the meeting called within the prescribed fifteen days the Presiding Officer was not 8 available. Sub-section (4) of Section 21 permits reference of a dispute to the Collector by Sarpanch or Up-Sarpanch against whom a notice of no confidence motion had been passed. The proceedings of the no- confidence motion or other proceedings under the Act are also assailable in this Court as Constitutional Court under Article 227 of the Constitution of India. As has been construed by us, even though second part of the rule requiring dispatch of notice of the meeting to the member is mandatory, yet in every case of challenge to the proceeding of no-confidence motion either before the Collector or this Court, it would still be open to the Collector or this Court to find out whether in a given case non-compliance of any part of the rule has in fact resulted in any failure of justice or has caused any serious prejudice to any of the parties. The general rule is that a mandatory provision of law requires strict compliance and the directory one only substantial. But even where the provision is mandatory, every non- compliance of the same need not necessarily result in nullification of the whole action. In a given situation even for non-fulfillment of mandatory requirement, the authority empowered to take a decision may refuse to nullify the action on the ground that no substantial prejudice had been caused to the party affected or to any other party which would have any other substantial interest in the proceeding. This Court under Article 227 of the Constitution has also a discretion not to interfere even though a mandatory requirement of law has not been strictly complied with as thereby no serious prejudice or failure of justice has been caused. This is how various Single Bench decisions in which even after finding some infraction of the second part of Rule 3 (3) of the Rules of 1994, the resolution of no-confidence motion passed was not invalidated on the ground that no substantial prejudice thereby was caused to the affected parties. The intention of the legislature has to be gathered from the provisions contained in Section 21 and the Rule 3 (3) framed thereunder. The provisions do evince an intention that a meeting of the no- confidence motion be called within a reasonable period of not later than 15 days and every member has to be informed of the same seven days in advance. A notice of no-confidence motion is required to be moved by not less than 1/3rd of the total number of elected members as required by first Proviso to Sub-rule (1) of Rule 3 and can be lawfully carried by a resolution passed by majority of not less than 3/4th of the Panchas present and voting and such majority has to be more than 2/3rd of the total number of Panchas constituting the Panchayat in accordance with subsection (1) of Section 21 of the Act. This being the substance of the provisions under the Act and the rules, a mere non-compliance of second part of Sub-rule (3) would not in every case invalidate the action unless the Collector while deciding the dispute under Sub-section (4) of Section 21 or this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution comes to the conclusion that such non-compliance has caused serious prejudice 9 to the affected office bearer or has otherwise resulted in failure of justice."
11.This High Court also in the case Sahasram Jangde and others Vs. State of CG and others, 2013 (4) CGLJ 526 in paragraphs - 5 & 6 has held as Under:
"5. Relying on the said judgment of Bhulin Dewangan (supra), the Division Bench of this Court in the matter of Gauri Bai Vs. State of CG and others: 2009 (2) CGLJ 175 has taken the similar view to hold that once the Sarpanch participated in the meeting without raising any objection and took a chance and being unsuccessful in the meeting challenged the validity on the ground of alleged violation of sub rule (3) of Rule 3 of the Adhiniyam, no interference can be made at her instance in the absence of any prejudice having been demonstrated by the said Sarpanch.
6.When the law laid down by the full Bench of M.P. High Court and Division Bench of this Court is applied to the facts of the present case, it is to be seen that respondent No.6 Sarpanch has not raised any ground before the Additional Collector that because of the fact that meeting was convened on 8th day from the date of dispatch of notice and not on 9 th day, and thus clear 7 days notice was not issued, she has suffered grave prejudice in preparing herself for the meeting and there being no such finding by the Additional Collector in the impugned order, it will be taken as if no prejudice has been caused to respondent No.6 Sarpanch and thus in absence of prejudice or failure of justice, the Additional Collector has wrongly set aside the resolution of the Gram Panchayat declaring the no-confidence motion to be passed. It is also to be seen that once this Court in the earlier writ petition has held that the earlier resolution of the Gram Panchayat passing no-confidence motion in May, 2011 having been annulled on technical grounds, the bar against moving of another motion within one year would not apply, the SDO(Revenue) should not have sought opinion from the Chief Executive Officer, Janpad Panchayat or from the Deputy Director Panchayat. However, by doing so, he wasted 7 days in the process. Therefore, once the no confidence motion has been passed the democratic norms and the statutory provisions cannot be left at the mercy of the prescribed authority whetn the law is well settled in the case of Bhulin Dewangan(Supra).
Declaring the resolution of the Gram Panchayat which has passed the no confidence motion by majority as illegal would render the wish of the 10 house nugatory and the Sarpanch who has lost the confidence of the house shall be allowed to function without any mandate in her favour. Such interpretation of Rule is neither permissible nor contemplated and this Court will not allow such effort of the prescribed authority to frustrate the will of the house by adopting dilatory tactics on the pretext of seeking legal opinion or opinion from the higher authorities. Learned counsel for respondent No.6 has relied on judgment of M.P. High Court in the matter of Jugraj Singh Markam Vs. Dhannalal Maravi and others : 2003 (4) MPLJ 378. However, in view of the discussion made above, and particularly the law laid down by the Full Bench of the M.P. High Court and the peculiar facts of this case, the said judgment relied upon by respondent No.6 has no application and is distinguishable. In the result, the writ petition succeeds and is allowed. The impugned order dt. 28.06.2012 passed by the Additional Collector is set aside. Consequently respondent No.6 no longer remains as Sarpanch of Gram Panchayat, Dahida, Tahsil Sarangarh District Raigarh."
12. The aforesaid law has further been relied upon by this Court also in the case of Gopi Lal Sahu Vs. State of Chhattisgarh and others, WPC No.3723 of 2019 decided on 18.10.2019 wherein all the aforesaid judgments were also relied upon taking a similar view.
13. The plain perusal of the contents of the impugned order Annexure P-1 would clearly indicate that on the date of meeting i.e. 15.11.2022 the atmosphere around the venue where the meeting was to be held was fully charged up with more than 200 villagers assembled protesting against the No confidence motion to be held. There was a serious law and order threat prevailing which led to the stalling of the No Confidence Motion on 15.11.2022. It was in this context that the impugned order dated 17.11.2022 was passed fixing the next date of No confidence Meeting on 25 th of November, 2022. Going by the proceedings drawn by the authorities concerned it cannot be said that the authorities have acted in a manner arbitrary or contrary to law.
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14. True it is that the statute mandates a meeting to be convened within 15 days but in an exceptional circumstance where given the conditions prevalent it was practically impossible to hold the meeting. That if under that circumstances it stands adjourned, the action on the part of the authorities cannot be said to be contrary to law nor can it be said to be in violation of the statutory provisions. It is also required to be taken note of the fact that the petitioner as such has not been able to show any substantive prejudice that would be caused to her if the meeting is held on 25.11.2022 in stead of 15.11.2022 the date on which it was earlier fixed. In the absence of any substantial prejudice caused to the petitioner this Court finds it difficult to interfere with the impugned order Annexure P-1.
15. The writ petition therefore fails and is accordingly rejected.
Sd/-
(P. Sam Koshy) Judge Khatai