Madhya Pradesh High Court
Hargovind Johari vs Zila Panchayat And Ors. on 30 January, 1996
Equivalent citations: 1996(0)MPLJ409, 1996 A I H C 4586, (1996) JAB LJ 231
ORDER T.S. Doabia, J.
1. Can a meeting summoned with a view to express no confidence can be adjourned for want of quorum? This precise question has been raised in this petition preferred under Article 226 of the Constitution of India.
2. The brief facts which have led to the filing of this petition be noticed as under.
3. The petitioner is a Member of Zila Panchayat, District Morena. Some Members of the Zila Panchayat moved the competent authority for getting a meeting convened for the purposes of expressing no confidence. This meeting was scheduled to be held on 9th of December, 1995 at 1.30 AM. The presiding officer found that quorum was not available. He adjourned the meeting to 20th of December, 1995. The information given by the presiding officer that the meeting has been adjourned from 9th of December, 1995 to 20th of December, 1995 is contained in Annexure P/l. This is being impugned in the present petition. As indicated above, the basic challenge is that a meeting called for expressing no confidence cannot be adjourned for want of quorum. According to the learned counsel for the petitioner as the requisite members of the Zila Panchayat were not present, the meeting should be deemed to have failed.
4. The stand taken by the petitioner is being opposed by the State. The basic reliance is being placed on a Division Bench judgment of this Court reported as Shankerlal v. Collector, Mandsaur and Ors., 1975 MPLJ190 = 1975 JLJ 500. The aforementioned authority supports the respondents that a meeting for no confidence can also be adjourned. As this position is sought to be distinguished on the ground that the provisions of the statute which were there before their Lordships in the above case are different from the provisions contained in the Madhya Pradesh Panchayat Raj Adhiniyam, 1993, it would be apt to notice the statutory provisions in both the Acts i.e., Madhya Pradesh Panchayat Act, 1962 (hereinafter referred to as the Act of 1962) and Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the Act of 1993). The relevant statutory provisions are Section 24 of the Act of 1962 and Section 35 of the Act of 1993. These be noticed and read as under:
Act of 1962 Act of 1993
24. No-confidence motion against 35. No confidence Motion against
Sarpanch or Up-Sarpanch. - (l)On a President and Vice-President. - (1) On a
motion of no-confidence being passed by motion of no-confidence being passed by
the Gram Panchayat by a resolution the Zila Panchayat by a resolution passed
passed by a majority of not less than by a majority of not less than three fourth
two-thirds of the Panchas present and or the members present and voting and
voting and such majority is more than such majority is more than two-third of
one half of the total number of Panchas the total number of members
constituting the Gram Panchayat for the constituting the Zila Panchayat for the
time being, the Sarpanch or time being, the President or
Up-Sarpanch against whom such motion Vice-President against whom such
is passed, shall cease to hold office with motion is passed, shall cease to hold
effect from the date immediately next office forthwith.
after the date on which such motion is
passed. (2) Notwithstanding anything
contained in this Act or the rules made
(2) Notwithstanding anything thereunder, a President or
contained in this Act or the rules made Vice-President shall not preside over a
thereunder, a Sarpanch or an meeting in which a motion of
Up-Sarpanch shall not preside over a no-confidence is discussed against him.
meeting in which a motion of Such meeting shall be convened in such a
no-confidence is discussed against him manner as may be prescribed and shall
but such meeting shall be presided over be presided over by an officer of the
by an officer of the Government as the Government as the prescribed authority
prescribed authority may appoint for the may appoint. The President or
purpose. However, the Sarpanch or the Vice-President as the case may be, shall
Up-Sarpanch as the case may be, shall have a right to speak at or otherwise to
have a right to speak and otherwise to take part in the proceedings of the
take part in the proceedings of the meeting.
meeting.
(3) A meeting for the purposes of this (3) No-confidence motion shall not
prescribed. section shall be held in the lie against the President or
manner prescribed. Vice-President within a period of : -
(i) one year from the date on which
the Zila 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;
(iii) one year from the date on which
previous motion of no-confidence was
rejected.
5. The rules enacted under the two statutes also does require to be noticed. Under the Act of 1962, Rule known as Madhya Pradesh Gram Panchayats (No-confidence Motion Against Sarpanch or Up-Sarpanch) Rules, 1964 were framed. Under the Rules of 1964, a notice was required to be given by the secretary of the Body and the meeting was to be called by him under his own signature. The presiding authority has been indicated in Rule 5 of the Rules of 1964. Under the Adhiniyam, 1993 also rules have been framed. These are known as Madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janapad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudha Avishwas Prastav) Niyam, 1994. In these rules, Section 3 deals with the requirement of giving notice. Rule 4 deals with appointment of presiding officer, Rule 5 deals with the method and manner in which a meeting is to be conducted, Rule 6 deals with the question as to how the minutes of the proceedings are recorded. As the two rules differ in some manner, therefore, it would be apt to notice rules also.
Rules of 1964 Rules of 1994
3. Notice. - Any Panch or Panchas 3. Notice. - Any member of Gram
who desire or desire to move a motion of Panchayat, Janpad Panchayat or Zila
no-confidence against the Sarpanch or Panchayat desiring to move a motion of
Up-Sarpanch shall give a notice thereof no-confidence against the Sarpanch or
to the Secretary in the Form appended to Up-Sarpanch of a Gram Panchayat or
these rules. Where the Panch or Panchas President or Vice-President of Janpad or
desires or desire to move the motion of a Panchayat as the case may be shall give
no-confidence against the Sarpanch as a notice thereof to the prescribed authority
well as the Up-Sarpanch, he or they shall in the form appended to these rules.
give two separate notices. If the notice is Where a member desires to move the
given jointly by more than one Panch, the motion of no-confidence against both the
motion may, subject to the provisions of Sarpanch and the Up-Sarpanch, President,
sub-rule (2) of Rule 5, be moved by any of Vice-President of Janpad Panchayat, or
the Panchas signing the notice. the President and Vice- President of Zila
Panchayat as the case may be shall by
separate notices. If the notice is given by
more than one member the motion may
be moved by any of them signing notice.
(2) The Secretary shall, on receiving (2) The prescribed authority on
the notice under sub-rule (1), sign receiving the notice under sub-rule (1)
thereon a certificate stating the date on shall sign thereon a certificate stating the
which and the hour at which the notice date on which hour and at which the
has been given to him and shall notice has been given to him and shall
acknowledge its receipt. acknowledge its receipt.
4. Convening of the meeting.- The (3) On receiving the notice under
meeting of the Gram Panchayat for the sub-rule (1) the prescribed authority
purposes of Section 24 of the Act shall be shall satisfy himself about the
convened by the Secretary and the notice admissibility of notice with reference to
of such meeting specifying the time and Sections 21(3), 28(3) and 35(3), as the
place thereof shall be despatched by the case may be. On being thus satisfied, he
Secretary to every Panch seven clear days shall fix the time and place for the
before the meeting. A copy of the notice meeting of the Gram Panchayat, Janpad
shall be sent to the Chief Executive Panchayat or Zila Panchayat, as the case
Officer of the Janpad Panchayat concerned. may be, which cannot be more than
fifteen days from the date of receipt of
5. Presiding authority. - (1) At any the said notice. The notice of such
meeting of the Gram Panchayat, while a meeting specifying the date, and place
motion of no-confidence against the thereof shall be caused to be despatched
Sarpanch is under consideration, the by him through the Secretary of the
Up-Sarpanch and while motion of Gram Panchayat or Chief Executive or of
no-confidence against the Up-Sarpanch is the Janpad or Zila Panchayat, as the case
under consideration, the Sarpanch, and may be, to every member of the Panchayat
while a motion of no-confidence against the concerned seven days before meeting.
Sarpanch as well as the Up-Sarpanch as well
as the Up-Sarpanch is under consideration, 4. Appointment of Presiding Officer. -
such Panch as may be elected by the The prescribed Authority shall appoint
Panchas present at the meeting shall an Officer of the Government under sub-
preside. section (2) of Section 21, sub-section (2)
of Section 28 or sub-section (2) of section
(2) A Panch elected to preside shall 35 to preside over the meeting of a
not be allowed to move the motion of Panchayat, Janpad Panchayat or Zila
no-confidence. Panchayat, as the case may be for the
purpose of considering the no confidence
(3) The presiding authority shall not motion against Sarpanch or
have casting vote in case there is equality Up-Sarpanch, a Revenue Officer not
of votes on the motion of no-confidence and below the rank of Naib Tahsildar against
the motion shall be deemed to have failed. President or Vice-President of Janpad
Panchayat as the Sub-Divisional Officer
6. Decision to be communicated to the (Revenue) and against President or
Chief Executive Officer and the Collector. Vice-President of Zila Panchayat the
- When the Gram Panchayat takes a Collector or Additional Collector shall
decision on any motion of no-confidence be appointed to preside over such
the secretary shall communicate meeting and the prescribed authority
forthwith to the Chief Executive Officer shall inform the Secretary of the Gram
of the Janpad Panchayat concerned and Panchayat or Chief Executive Officer of
the Collector, the names of all the Janpad or Zila Panchayat as the case
Panchas who were present at the meeting may be and the Collector of the district
at which such decision was taken and the about such appointment at least 3 days
vote given by each Panch whether in before the date fixed for the meeting.
favour of or against the motion.
7. Minutes of the proceedings. - (1) 5. Conduct of meeting. - (1) The
Minutes of the proceedings at the Presiding Officer shall record the
meeting of the Gram Panchayat shall be attendance of the members of the
drawn up by the Secretary and recorded Panchayat present at the meeting.
in the book kept for the purpose.
(2) If the signatory/ies of the
(2) The minutes of the proceedings no-confidence motion wants to withdraw
recorded under sub-rule (1) shall include, - the motion suo motu he/they may do so
in writing and by presenting such notice
(i) the names of the Panchas present; in person to the Presiding Officer before
the no-confidence motion is taken up for
(ii) the decision of the meeting on the consideration.
motion of no-confidence; and
(3) If the motion is not withdrawn suo
(iii) when such decision is not motu the Presiding Officer shall ask any
unanimous the number of votes and of the signatories to the notice to move
names of panchas voting for and against the motion.
such motion and the names of those who
have remained neutral. (4) After the motion is moved the mover
shall first speak on the motion and
thereafter other members may, if so
desire, speak on the motion.
(5) On the conclusion of the debate
on the motion, the Presiding Officer shall
call the members present in the motion
one by one and shall give them ballot
paper duly signed by him to indicate its
authenticity to cast his vote for or against
the motion. The member who wants to
vote in favour of the motion shall affix
the symbol (_/) and the member who
wants to vote against the motion shall
affix the symbol 'X'. After the member
has recorded his vote, he shall fold the
ballot paper to maintain secrecy and put
it in the ballot box kept on the table of
the Presiding Officer.
(6) After the voting is over, the
Presiding Officer shall take out the ballot
papers from the ballot box and sort out
the votes for and against the motion. If
the number of votes in favour of the
motion fulfils the requirement of
sub-section (1) of Section 21, sub-section
(1) of Section 28, or sub-section (1) of
Section 35, as the case may be, the
Presiding Officer shall declare that the
motion of no-confidence is passed. In the
event of there being an equality of votes
in favour of and against the motion, the
motion would be decided by toss of coin.
6. Minutes of the proceedings. -
Minutes of the proceedings of the
meeting called under Rule 4 shall be
drawn up by the Presiding Officer and
recorded in the minute book kept in the
Panchayat for recording the proceedings
of its meeting and sign it.
6. Reverting back to the decision in Shankerlal's case (supra), it has been held that no confidence motion can be adjourned and the rule of quorum which is applicable to other meetings would apply also to a meeting where no confidence is to be expressed.
7. The learned counsel for the petitioner submits that there are material differences in the rules framed under the Adhiniyam, 1993 and these are pointed out by him as under :
(i) that, under the Adhiniyam of 1993 once a motion fails then another no confidence motion cannot be brought for a period of one year. According to him, when there is lack of quorum the no confidence motion should be deemed to have failed and by operation of law another meeting for expressing no confidence cannot be held before one year;
(ii) that, so far as the rules are concerned, it has been pointed that under the rules of 1964, there is no provision corresponding to Rule 5 of the Rules of 1994 which deals with the method and manner in which a motion for confidence is required to be held. This was not present in the Act of 1962, therefore, by analogy one had to lean upon the provisions of Section 30 of the Act of 1962 for the purposes of conducting the meeting. As in the present Adhiniyam, 1993, separate and detailed rules have been framed with regard to the manner and method in which a meeting is to be conducted, therefore, Section 44 of the Adhiniyam, 1993, would not be attracted for the purposes of this case;
(iii) that, under the Rules of 1994, a meeting for no confidence is to be held within a period of fifteen days and a date for this is to be fixed by the prescribed authority. The prescribed authority in the case of Zila Panchayat is the Commissioner of the Division. Once the Commissioner of the Division fixes a date then he further indicates the person who has to preside over the meeting. The person who is to preside over the meeting is Collector or the Additional Collector. Presiding Officer has no power to fix a date for meeting.
8. The argument of the learned counsel for the petitioner is that the person who is nominated to preside over the meeting is merely to preside over the meeting. According to him, he has to conduct the proceeding and he has no power to adjourn the meeting and again he has no power to fix a date. It has also been pointed out that for fixing a date one will have to depend upon the Commissioner of the Division. It is further argued that if the matter is to go before the Commissioner after the period of fifteen days has lapsed then the Commissioner would also not have any power to get a meeting convened.
9. The further argument of the learned counsel for the petitioner is that since a notice of the adjourned meeting has been given by the Collector, he is not the person who could be said to have been authorised to give a notice and the notice has to originate from the Commissioner.
10. I am of the view that there is material difference between the statutory provisions which were there before their Lordships of the Division Bench in Shankerlal's case (supra) and in this case. These are indicated as under:
(i) that, as to how a meeting is to be conducted is indicated in the rules of 1994 framed under the Adhiniyam, 1993. It was not so under the Act of 1962 which were considered by the Division Bench in Shankerlal's case (supra). It was precisely for this reason, the statutory provisions contained in the Act of 1962 with regard at holding of meetings were taken note of;
(ii) that, under the Rules of 1994 prepared under the Adhiniyam, 1993, a meeting for expressing no confidence has to be called within a period of fifteen days. If it is not done then the original notice would lapse. This factor was again missing under the rules framed under the Act of 1962;
(iii) that, the date of fixing a meeting is to be indicated by the prescribed authority and thereafter an officer has to be appointed for holding the meeting of no confidence under the rules of 1994. In the present case, the date is to be fixed by the Commissioner of the Division. The meeting is to be presided over by the Collector or the Additional Collector. Under the old Act which was being considered by the Division Bench, the fixation of meeting was to be by the same functionary and the Sarpanch or Up-Sarpanch as the case may be to preside over the meeting; and
(iv) that, the Adhiniyam of 1993 makes a provision to the effect that if a no confidence motion fails then another meeting for no confidence cannot be called for at least one year in case of President of Zila Panchayat. This was again missing in the old Act.
11. The above distinctions which have been pointed are material. As a matter of fact, the distinction pointed out that the method and manner of conducting the meeting of no confidence has been indicated under the Rules of 1994 is very material. There is no requirement of quorum being there in Rule 5. If this be the position then the meeting could not be adjourned. It is further to be seen that the officer who is presiding over the meeting is merely authorised to preside over the meeting. He has not been authorised to fix another date for the purposes of holding a meeting and in case a meeting is ordered to be held beyond the period of fifteen days then this would be in breach of the rules referred to above.
12. The decision given by the Division Bench of this Court in Shankerlal's case (supra) be now examined.
13. The above decision is an authority for the proposition that a meeting which is called with a view to express lack of confidence can also be adjourned. The relevant observations made are as under :
"....There is nothing in Section 24 or the relevant Rules to provide for a case like the present where the meeting could not be held at the time specified in accordance with Rule 4 due to absence of all Panchas on account of which it had to be adjourned. Section 24 and the corresponding rules are silent on the point of adjournment of the meeting so convened. In view of the express content of Rule 4 of the 1964 Rules, it cannot be doubted that the time of the meeting is required to be expressly stated in the notice given under Rule 4 to every Panch. Such a notice is required to be given seven clear days before the meeting. Thereafter the Rules are silent and make no provision to regulate an adjournment which may become necessary for several reasons including want of quorum as in the present case. It would be reasonable to hold that the provision of sub-section (4) of Section 30 which provides for adjournment of a meeting applies to such a meeting also the same being not inconsistent in any manner with Section 24 or the corresponding rules. To hold otherwise, would lead to the curious result that there would be no provision to govern the adjournment of a meeting required to be held under Section 24 of the Act where the same cannot be held at the specified time for any reason whatsoever, even though provision is made to regulate adjournment of ordinary meetings in sub-section (4) of Section 30. The further inevitable consequence would be that the power to adjourn a meeting convened for the purposes of Section 24 of the Act being undoubted for the reasons already given the same would be untrammelled even though such a meeting is bound to be an important one...."
Even if this view expressed by the Division Bench is accepted and it is conceded that a meeting summoned with a view to express lack of confidence is like any other meeting and can be adjourned, the question still remains whether this could be adjourned in manner which would be in conflict with the mandatory provisions indicated in the Rules of 1994. The question arises as to who could adjourn it and for which date? As noticed above, under the Rules of 1994, the decision as to when a meeting is to be convened is left with the Commissioner of the Division in this case. It is this officer who takes a decision to appoint a presiding officer. Again, the meeting for expressing lack of confidence has to be held within fifteen days from the date a request is made in this regard to the Commissioner of the Division. Thus, even if it is conceded that a meeting summoned with a view to express" lack of confidence can be adjourned even then the petitioner in entitled to the relief to the extent that this meeting could not be adjourned beyond fifteen days to be calculated from the date of the original request.
14. Thus, I am of the view :
(i) that, the Rules of 1994 are materially different from the statutory provisions which were under consideration before the Division Bench in Shankerlal 's case 1975 MPU 190 = 1975 JLJ 500, and
(ii) that, the Rules of 1994 and more particularly Rule 5 indicated a detailed procedure and no provision is made for adjournment of a meeting and even if it be conceded that the view expressed in Shankerlal's case (supra) that such a meeting can be adjourned even then in view of the provisions contained in Rule 3(3) of Rules, 1994, this meeting could not be adjourned beyond a period of fifteen days from the date of receipt of the notice referred to in Rule 3(1) of the Rules of 1994.
15. Accordingly, it is held that the notice, Annexure P/l by which meeting was adjourned to 12th of December, 1995, being beyond a period of fifteen days, as indicated in Rule 3(3) of the Rules of 1994, would not be a valid meeting. This petition is allowed. The requisitionist who sent a notice to the prescribed authority under Rule 3(1) of the Rules of 1994, would be at liberty to make a fresh requisition for getting a meeting of no confidence convened.