Madhya Pradesh High Court
Rajendra Singh Parmar vs The State Of Madhya Pradesh on 3 December, 2014
1 WP No.773/2014
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR.
SB : Hon'ble Shri Justice Sujoy Paul
Writ Petition No. 773 of 2014
Rajendra Singh Parmar
vs.
State of MP & others
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Shri H.D.Gupta, Sr. Advocate with Shri Santosh Agarwal, Advocate for
the petitioner.
Shri R.P.Rathi, Government Advocate for the respondents No.1 to 4.
Shri D.P.Singh, Advocate for the respondent No.16.
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ORDER
(03/12/2014) Parties are on loggerheads on the question relating to validity of No-Confidence Motion proceedings. In this petition filed under Article 226/227 of the Constitution, the petitioner has prayed for setting aside the proceedings of the meeting dated 7.11.2012, whereby a No- Confidence Motion was passed against him. The order dated 30.1.2014, Annexure P-1, is also called in question, whereby the validity of the proceedings dated 7.11.2012 is upheld by the Commissioner, Chambal Division, Morena.
2. The necessary facts giving rise to this matter are that the petitioner was President of Janpad Panchayat Gohad, district Bhind. A notice was submitted by 21 members of Janpad Panchayat before the Collector on 17.10.2012 asking to convene the meeting for considering No-Confidence Motion. The Collector, in turn, on 30.10.2012 directed to convene a meeting on 7.11.2012 to decide the question of No- Confidence Motion. The meeting was convened on 7.11.2012 and No- Confidence Motion was passed. Thereafter, parties have fought a long drawn battle in the corridors of the Court. However, ultimately in WP No. 8532/2012, this Court on 16.11.2013 directed the petitioner to avail the remedy under section 28(4) of Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter called as 'Adhiniyam') before the Commissioner. In turn, the dispute was filed before the Commissioner 2 WP No.773/2014 on 28.1.2013, which is decided by the impugned order dated 30.1.2014.
3. Shri H.D.Gupta, learned senior counsel assailed the proceedings of No-Confidence Motion by contending that on 17.10.2012 a notice of No-Confidence Motion was submitted, which was not in prescribed form. It was filed under the signature of Shri Sudhir Kumar Sharma, Advocate. The Collector has not followed rule 3 of the Madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 (hereinafter called as '1994 Rules'). The Collector has not mentioned the date, time and place, as required to be mentioned under rule 3. He has not recorded his satisfaction as required in rule 3 read with section 28 of the Adhiniyam. Since main notice dated 17.10.2012 does not contain the signatures of elected members, said notice by no stretch of imagination can be treated as a valid notice of No-Confidence Motion. It is strenuously contended that as per rule 3 aforesaid, the Collector was required to convene the meeting of Janpad Panchayat within fifteen days from the date of receipt of said notice. In the present matter, it is contended that Collector has fixed the meeting beyond fifteen days from the date of presentation of notice. Thus, the said meeting and the resolution passed on the said date is null and void. It is further submitted that the notice of meeting for the purpose of no confidence needs to be issued by Chief Executive Officer whereas in the present case the Collector entrusted this job to Sub-Divisional Officer, which is bad in law. In the debate on 7.11.2012, the petitioner was not permitted to speak. There was no effective discussion/debate and, therefore, proceedings on 7.11.2012 were vitiated. It is further contended that in the manner meeting was conducted, rule 5 of 1994 Rules was grossly violated. It is submitted that during the proceedings before the Commissioner, members, namely, Sunil Kaurav, Smt. Nirmala Devi and Guddi submitted affidavits and stated in favour of the petitioner. No cross- examination was conducted on the said affidavits by the other side. Hence, their statement should have been treated as correct and learned Commissioner has erred in disbelieving the same. In support of the 3 WP No.773/2014 aforesaid arguments, learned senior counsel relied on following judgments:-
(i) AIR 1959 SC 459 (Sri Ram Ram Narain Medhi etc. vs. State of Bombay).
(ii) 1997 (2) MPLJ 175 (Dhumadandhin w/o Bundsai vs. State of MP).
(iii) 1998 (2) MPLJ 661 (Muka Bai vs. State of MP). (iv) 2001 (2) MPLJ 372 (Bhulin Dewangan vs. State of MP). (v) 2003 (4) MPLJ 378 (Jugraj Singh Markam vs. Dhannulal Maravi). (vi) 2004 (1) MPHT 312 (Narayan Nagina vs. State of MP). (vii) (2005) 2 SCC 271 (Nathi Devi vs. Radha Devi Gupta). (viii) 2007 (4) MPLJ 554 (Dinesh Sharma vs. State of MP). (ix) 2008 (1) MPHT 413 (Anil Kumar Jain vs. State of MP). (x) (2010) 2 SCC 422 (Union of India vs. Kartick Chandra Mondal). (xi) (2010) 9 SCC 30 (Union of India vs. R. Vasudeva Murthy). (xii) (2012) 2 SCC 196 (Rasiklal Manikchand Dhariwal vs. M.S.S.Food Products). (xiii) (2013) 10 SCC 772 (Union of India vs. National Federation of the Blind and others). 4. Shri R.P.Rathi, learned Government Advocate and Shri
D.P.Singh, learned counsel for the respondent No.16 supported the proceedings of no-confidence and the order of the Commissioner. It is submitted by learned Government Advocate that main notice contains signatures of 21 members out of total 25 members. In addition, affidavits of all 21 members were filed along with the said notice before the Collector. When the notice of no confidence was submitted before the Collector on 17.10.2012, all the applicants/21 members put their signatures in the order sheet to demonstrate that the said notice was given by them on their own volition and without there being any pressure or threat. He submits that the proceedings were in consonance with rules 3 and 5 of 1994 Rules. Learned counsel for the respondents heavily relied on the Full Bench judgment of this Court, reported in 2000 (4) MPHT 69 (Smt. Bhulin Dewangan vs. State of MP). In addition, the respondents relied on following judgments :-
(i) 1997 (2) MPLJ 175 (Dhumadandhin w/o Bundsai vs. State of MP).
(ii) 2002 (3) MPHT 175 (Shivaji Rao Patil vs. The Collector, Balaghat).
(iii) 2004 (2) MPHT 76 (Smt. Kamla Durga Solanki vs. State 4 WP No.773/2014 of MP).
(iv) 2005 (1) MPLJ 200 (Nanchi Bai vs. State of MP). (v) 2008 (1) MPHT 413 (Anil Kumar Jain vs. State of MP). (vi) (2008) 1 SCC 560 (Udyami Evam Khadi Gramodyog
Welfare Sanstha and another vs. State of Uttar Pradesh and others).
(vii) 2008 (2) MPLJ 172 (Seva Yadav vs. State of MP).
(viii) (2008) 12 SCC 481 (K.D.Sharma vs. Steel Authority of India Limited).
5. In rejoinder submission, learned counsel for the petitioner submits that the judgment of Bhulin Dewangan (supra) shows that the Full Bench was constituted to decide the correctness of the judgments passed by earlier benches of smaller strength in certain other matters. The basic question was arising out of a cleavage of opinion between various decisions of this Court on the question whether the later part of rule 3 requiring dispatch of notice of meeting to every member of the Panchayat is mandatory and means service of notice on the members seven days in advance of the date scheduled for considering No- Confidence Motion. To elaborate, it is submitted that under the relevant High Court Rules, the Full Bench is obliged to answer only such question which is referred to it or which is subject matter of the difference of opinion. If Full Bench has travelled beyond such question and opined something, such opinion is per incuriam and is not binding. It is also submitted that the Presiding Officer, who presided the meeting on 7.11.2012 had some bias against the petitioner and, therefore, the meeting was not fairly conducted by him.
6. No other point is pressed by learned counsel for the parties.
7. I have heard learned counsel for the parties at length and perused the record.
8. The basic facts are not in dispute. It is not in dispute that the notice of No-Confidence Motion was submitted on 17.10.2012. The Collector fixed the meeting for 7.11.2012 and motion was passed on the said date. The objection of the petitioner is regarding the manner in which notice was given on 17.10.2012 and the manner in which meeting was directed to be convened. Eyebrows are also raised in the manner decision was taken on 7.11.2012.
9. Section 28 of the Adhiniyam deals with No-Confidence Motion 5 WP No.773/2014 against President or Vice-President of Janpad Panchayat. As per section 28, if resolution of no-confidence is passed by a majority of not less than three-fourth of the elected persons present and voting of such majority is more than two-third of total number of elected members constituting the Janpad Panchayat for the time being, the President against whom such resolution is passed shall cease to hold the office forthwith. Rule 3 of 1994 Rules prescribes that the notice desiring to move a motion of no confidence needs to be signed by not less than one third of the total number of elected members of Panchayat. The notice needs to be submitted before the Prescribed Authority (Collector in this case). On receiving the notice under sub-rule (1), the Collector needs to certify the date and hour on which notice was given to him. On receiving the notice, the Prescribed Authority needs to satisfy himself about the admissibility of notice with regard to section 28(3) of the Adhiniyam. This satisfaction is must because No-Confidence Motion shall not lie in three conditions, i.e., (i) two and half year from the date on which the President or Vice-President enter their respective office;
(ii) six months preceding the date on which the term of office of the President or Vice-President, as the case may be, expires; and, (iii) six months from the date on which previous motion of no confidence was rejected. On being satisfied, the Collector needs to fix the date, time and place for the meeting of Panchayat.
10. The bone of contention of petitioner is based on the language of rule 3(3), which states that said meeting shall not be after more than fifteen days from the date of receipt of the said notice. In the present case, admittedly the notice was submitted on 17.10.2012 and meeting was convened on 7.11.2012. The question is, whether this delay in conducting the meeting will vitiate the meeting ? Learned counsel for the petitioner has relied on the judgment of this Court in Mukobai (supra). Interestingly, heavy reliance is placed by both the sides on Bhulin Dewangan (supra) decided by Full Bench. In Bhulin Dewangan (supra), this Court considered an incidental question whether non- compliance of sub-rule (3) of rule 3 would, as a necessary corollary, invalidate the proceedings held in the meeting called for passing the 6 WP No.773/2014 No-Confidence Motion. No doubt, a bare reading of rule 3(3) of 1994 Rules shows that it is couched in a mandatory language. However, it is apt to quote a passage from Principle of Statutory Interpretation by Justice G.P.Singh, wherein he quoted as under :-
"The word "shall", observes Hidayatullah, J. "is ordinary mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands", and points of Subbarao, J., "When a statute uses the word 'shall', prima facie it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute."
11. In Bhulin Dewangan (supra), the Full Bench considered the aforesaid passage and opined that the expression used in the first part of the rule for fixing the date, time and place for the meeting is "which shall not be more than fifteen days from the date of receipt of the said notice". The legislative intent behind the rule clearly appears to be that when a notice of No-Confidence Motion duly signed by requisite number of elected members of Panchayat is received, the Prescribed Authority shall not be allowed to sit ideal over it for an unreasonable long period of time. It is enjoined on him that he shall within not more than fifteen days from receipt of notice by him, call a meeting for considering the No-Confidence Motion. The Full Bench considered the earlier judgments on the point, namely, - Dhumadandhin w/o Bundsai vs. State of MP [1997 (2) MPLJ 175] and Mahaveer Saket vs. Collector, Rewa [1998 (2) JLJ 113]. C.K.Prasad, J. (as he then was) in Dhumadandhin (supra) opined that " 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 7 WP No.773/2014 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, it was held that a motion of no-confidence passed against the petitioner beyond a period of fifteen days from the date of notice cannot be held to be illegal. In Mahaveer Saket (supra), R.S.Garg, J., held that mere non-compliance of first part of the rule in fixing the meeting beyond the prescribed date of motion of no confidence would not invalidate the whole proceedings. In Bhulin Dewangan (supra), the Full Bench opined that even where the provision is mandatory, every non-compliance of said provision need not necessarily result in nullification of 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 affected party, who had substantial interest in the proceedings. It is opined that 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. The Full Bench approved the decision of Dhumadandhin (supra). Thus, as per this Full Bench judgment, the meeting cannot be mechanically nullified as a thumb rule for the reason that it was convened after fifteen days from the date of notice. The whole action needs to be examined as per the intent of the rule. It is to be seen whether such procedural or technical flaw and delay has resulted into substantial prejudice or failure of justice with regard to the affected person.
12. The record shows that after receiving the notice, the Collector examined it carefully and recorded his satisfaction that it is in consonance with the requirement of section 28 and rule 3. In order to record this satisfaction, the Collector consumed some time which resulted into convening of meeting beyond fifteen days. The notice is signed by 21 members. In addition, they filed their own affidavits in support of the said notice. The order of Collector dated 30.10.2012 shows that he obtained an enquiry report from Sub-Divisional Office. He 8 WP No.773/2014 recorded his satisfaction that out of 21 affidavits submitted along with notice, 20 members have certified regarding submission of their affidavits. He verified the contents of application/notice and relevant documents and thereafter fixed the meeting on 7.11.2012. This order sheet shows that the Collector had undertaken this exercise in order to ensure transparency and in order to examine that requirement of section 28(3) of the Adhiniyam is fulfilled.
13. The question is whether this delay resulted into any prejudice to the petitioner ? In the opinion of this Court, for this delay no substantial prejudice is caused to the petitioner. During the course of the argument also the petitioner has not pointed out anything which shows the nature of prejudice caused to him because of said delay in convening the meeting. It cannot be forgotten that if elected members submitted a notice of No-Confidence Motion, thereafter they have no control over the same and it is for the Prescribed Authority to take action on it. If the Prescribed Authority delays the same, the meeting cannot be mechanically declared as invalid. Fransis, J. Mc Caffrrey in the 'Rule from Statutory Construction', 1953 Edition, Article 52, Page 110, said as under:-
"Where a statute regulates the time at or within which an act is to be done by a public officer or body, it is generally construed to be permissive only as to the time, for the reason "that the public interests are not to suffer by the laches of any public officer" (Looney vs. Hughes, 26 N.Y., 514). While the courts are inclined to hold such provisions to be directory only as to time, they will be read as mandatory if the nature of the act to be performed or the phraseology of the statute indicates an intention on the part of the legislature to accept a literal complaints with the requirement of time. The courts seek to achieve a just result in not ascribing and invalidating effect to the failure of public officers to observe the time provisions of statutes : a contrary rule would operate unfairly in prejudicing the rights of persons who have no control over the conduct of the public officer."
(Emphasis Supplied)
14. In view of finding of Bhulin Dewangan (supra) and the view of Fransis, J. (supra), it is clear that the meeting convened on 7.11.2012 9 WP No.773/2014 cannot be mechanically held as illegal. The Collector, as noticed above, consumed some time in verification of the notice/affidavit etc. The delay caused because of the said exercise has not resulted into any substantial prejudice or failure of justice to the petitioner. Thus, I am unable to hold that the meeting held on 7.11.2012 is vitiated.
15. A Division Bench of this Court in 2008 (2) MPLJ 16 (Seva Yadav vs. State of MP) opined that "in view of the aforesaid discussion, it is clear that this Court has approved this interpretation of rule 3(3) of "Niyam of 1994" that fixing the date of meeting within 15 days is mandatory but as no consequences have been mandated under the rules therefore, if the meeting is fixed prior to fifteen days or after the period of fifteen days, it would not nullify the entire action of passing no confidence motion. His Lordship Hon. Shri A.K.Mathur, CJ (as he then was) and Hon Shri Dharmadhikari Justice (as he then was) have rightly held that every non-compliance of the mandatory rule 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 has been caused to the party affected or to any other party which would not have any other substantial interest in the proceedings. It is the general principle that the public interest should not be allowed to suffer by the laches of any public officer. In this view of the matter, the argument regarding validity of meeting beyond fifteen days must fail.
So far the contention that the judgment of Full Bench is not binding and per incuriam is concerned, I do not see any substance in this contention. I am bound by the judgment of Full Bench in Bhulin Dewangan (supra). The Full Bench opined that the question arising out of rule 3 aforesaid is an incidental question. Finding of Full Bench even on an incidental question is equally binding on this Court. The propriety, judicial discipline and law of precedent requires that such decision must be respected by the benches of smaller strength. Apart from this, in (2001) 2 SCC 480 (Pabitra Mohan Dash and others vs. State of Orissa), the Supreme Court opined that if a special bench thinks it 10 WP No.773/2014 appropriate to reconsider the matter afresh and redetermine the issues involved in the light of relevant provisions, there is no infirmity on that score even though the point of reference was of a limited nature. The Court while examining the provisions of the Act, Rule or Regulation feels that earlier decision on the question is not clear on any particular issue or has created confusion in resolving the dispute, it would be the duty of the Court to re-examine the matter. For this reason also, I find no substance in the argument that Bhulin Dewangan (supra) is not binding. Apart from this, a subsequent Division Bench decision in Seva Yadav (supra) has taken the same view.
In addition, in Nanchi Bai (supra), this Court opined that when petitioner participated in the meeting without raising any objection and motion was carried out with majority, no prejudice is caused to the petitioner because of non-convening of meeting within a period of fifteen days.
16. The Commissioner opined that although the notice is not submitted in prescribed form, it fulfills the basic requirement of the Rules. I find no legal infirmity in the said finding. The necessary ingredients for filing a notice were very much there which were duly verified by the Collector. Hence, on this score no interference is warranted.
17. The Collector has verified the genuineness of the affidavits submitted along with the notice and recorded his satisfaction in the order dated 17.10.2012. No flaw could be pointed out which establishes that the said order dated 17.10.2012 has resulted into substantial prejudice to the petitioner. Thus, no interference is warranted on this score.
18. It is submitted that on 7.11.2012 no debate took place and resolution was passed which runs contrary to rule 5 of 1994 Rules. The proceeding of the said date shows that the motion was moved through the movers. Rule 5(4) shows that the motion is required to be moved by the mover and other members may speak on the motion only if they so desire. There is no material on record to show that any other member expressed any such desire to speak. Thereafter, the petitioner was 11 WP No.773/2014 permitted to speak on the motion and he stated that the allegations against him are incorrect. If mover has put forth his stand which is controverted by the petitioner, a debate actually took place. It cannot be said that the persons who expressed their desire to speak were not permitted to speak. In view of rival stand, for and against the motion, the Presiding Officer adopted the procedure of secret ballot. Nothing could be pointed out which shows that it either violates rule 5 or has resulted into any substantial prejudice to the petitioner. Thus, I find no reason to interfere on this score.
19. The stand of the petitioner is that he had strained relation with the Presiding Officer, who convened the meeting on 7.11.2012. There is no material on record to show that on or before 7.11.2012, the petitioner had raised any such objection. He raised this objection after passing of the resolution. Thus, this ground cannot be a reason to disturb Annexure P-2.
20. So far the contention regarding evidence through affidavits of Sunil Kaurav, Nirmala Devi and Guddi is concerned, there is no material on record to show that between 17.10.2012 to 7.11.2012 they preferred any representation to the authorities contending that they did not sign the notice dated 17.10.2012 and they were in any wrongful confinement. Interestingly, even in the said affidavits they have not stated that they signed on the notice dated 17.10.2012 under any coerce, compulsion, threat or pressure. It is relevant to note that even after passing of the resolution dated 7.11.2012, they did not submit any application before the Collector or any other authority that they acted under dictate or pressure. After a considerable long time, they filed affidavits before the Commissioner. In Anil Kumar Jain (supra), this Court dealt with a situation where certain affidavits were filed on 30.8.2007 and 31.8.2007 by two councilors but later on they resiled from the same. This Court opined that there is no provision under the Act empowering the authorities to reconsider the matter and to ignore the earlier proposal based on earlier affidavits. The affidavits for the reasons stated above, do not inspire any confidence and, therefore, in my view, the Commissioner has not erred in not accepting them. The 12 WP No.773/2014 Commissioner rightly opined that since no objection was taken by the said deponents during the meeting on 7.11.2012 or immediately thereafter, the said affidavits are not reliable. More so when in the affidavits filed with notice dated 7.10.2012, their signatures are not in dispute. He rightly held that subsequent affidavits of such persons are outcome of after thought. He has taken a plausible view which does not require any interference by this Court.
21. To sum up, the judgment of Bhulin Dewangan (supra) directly deals with relevant provisions of the Adhiniyam and Rules. Thus, the said judgment is binding on this bench. As per the legislative intent, a No-Confidence Motion moved and passed by majority cannot be nullified on hyper-technical grounds and on trivial flaws. Unless the petitioner is able to establish that any such flaw has resulted into substantial prejudice to him or miscarriage of justice, interference is not warranted, otherwise, the very purpose of bringing No-Confidence Motion will be defeated on technical grounds. In the present case, the petitioner could not establish any such flaw in the process which has resulted into any such substantial prejudice or miscarriage of justice. Although the petitioner has relied on certain other judgments but said judgments are based on different factual scenario. Those judgments are not applicable in the facts and circumstances of the present case.
22. As analyzed above, there is no legal infirmity in the no confidence proceedings and resolution which warrants interference by this Court. Petition fails and is hereby dismissed. No cost.
(Sujoy Paul) Judge (Yog)