Madhya Pradesh High Court
Nagsai vs State Of Madhya Pradesh And Ors. on 20 February, 1997
Equivalent citations: AIR1998MP81, AIR 1998 MADHYA PRADESH 81
ORDER S.K. Dubey, J.
1. By this petition under Article 226 of the Constitution of India the petitioner who is a elected Sarpanch of the Gram Panchayat of Siri Khurd, under Vikas Khand, Jhingerwar of District Raipur has challenged the resolution of the Gram Panchayat dt. 14-11-1995, whereby the motion of no-confidence against the petitioner was carried out.
2. Brief facts for the decision of this petition are that a notice under 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 (for short 'Rules') was given to the prescribed authority in the form prescribed to move motion of no-confidence against the petitioner. On that notice of convening a meeting was despatched to every member of Panchayat. On 14-11-95 the meeting was conducted by the Presiding Officer in the manner prescribed as laid down in Rule 5, wherein 14 Panchas including the petitioner were present. After the conclusion of debate on the motion, ten members casted their votes in favour of the motion and two voted against the motion. One vote was rejected. Thus, the motion was passed by majority as required by Section 21(1) of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (for short 'Adhiniyam'). In the meeting so held the petitioner though was present was not allowed to speak and to participate in the proceedings of the meeting nor was allowed to cast his vote.
3. The petitioner has challenged the validity of resolution of no-confidence on various grounds, but, it is not necessary to deal with all the grounds and contentions raised, as in the opinion of this Court, the motion of no-confidence so passed is in violation of Section 21(2) of the Adhiniyam inasmuch as in the meeting so held the petitioner was not allowed to participate in the meeting. He was neither allowed to speak nor was allowed to vote which is evident from the minutes of the meeting and is not denied in the return.
4. It was contended by the respondents that Gram Panchayat is constituted of 14 Panchas. In the said meeting 13 Panchas were present. Out of 13, one vote was rejected. Ten members casted vote in favour of the motion of no-confidence, while 2 voted against the motion of no-confidence, therefore, even if the vote of the petitioner is counted against the motion of no-confidence, that will not make any difference. Hence, if the petitionerwas not allowed to speak at, or otherwise to take part in the proceedings and was not allowed to vote,-as the majority has expressed lack of confidence in the elected Sarpanch, the resolution of no-confidence cannot be said to be illegal.
5. A motion of no-confidence against Sarpanch and Up-Sarpanch can only be passed in accordance with the provision of Section 21 of the Adhiniyam in a meeting conducted in the manner prescribed under Rule 5, which are reproduced thus :
"21. No-confidence motion against Sarpanch and 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 three-fourth of the Panchas present and voting and such majority is more than two-third 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 forthwith.
(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 dismissed 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 a right to speak at, or otherwise to take part in, the proceeding of the meeting.
(3) No-confidence motion shall not lie against the Sarpanch or Up-Sarpanch within a period of --
(i) One year from the date on which the Sarpanch or Up-Sarpanch enter their respective office;
(ii) six months preceding the date on which the term of office of the Sarpanch or Up-Sarpanch, as the case may be, expires;
(iii) one year from the date on which previous motion of no-confidence was rejected:"
"5. Conduct of meeting.-- (1) The Presiding Officer shall record the attendance of the members of the Panchayat present at the meeting.
(2) If the signatory/ies of the no-confidence motion wants to withdraw the motion suo motu he/they may do so in writing and by presenting such notice in person to the Presiding Officer before the no-confidence motion is taken up for consideration.
(3) If the motion is not withdrawn suo motu the Presiding Officer shall ask any of the signatories to the notice to move the motion.
(4) After the motion is moved the mover shall first speak on the motion and thereafter other members may, if they 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 meeting 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 V. 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 covered, 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 fulfills 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 equity of votes in favour of and against the motion, the motion would be decided by toss of coin."
6. From a bare look to Sub-section (2) of Section 21 and Rule 5, it is abundantly clear that the Sarpanch or Up-Sarpanch against whom the motion of no-confidence is discussed has a right to speak at or otherwise to take part in the proceeding of the meeting. The object of this right is to satisfy and impress upon the members during the course of discussion about his confidence, which was denied to the petitioner. Therefore, even if the motion of no-confidence is passed by majority as required under Section 21(1), cannot be said to have been validly passed. It is well-settled that when a statute provides for a mode of doing an act, it has to be done in that manner alone, other modes of doing the act are not permissible. Therefore, the statutory right of the petitioner under Sub-section (2) of Section 21 cannot be whittled down by any means, including the majority of members.
7. A Full Bench of this Court in case of Prabhulal v. Gram Panchayat, Guradiva, 1986 Jab LJ 730 : (AIR 1986 Madh Pra 200), while considering a case on a motion of no-confidence by secret ballot, not provided in Section 18 of M. P. Panchayat Act, 1981 nor in Rule 6 of M. P. Gram Panchayat (No-confidence Notice against Sarpanch or Up-Sarpanch) Rules 1981, observed that validity of no-confidence resolution passed by majority against the Sarpanch passed in a manner contrary to law and following a procedure which is prohibited cannot be upheld.
8. As an upshot though the resolution passed of no-confidence against the petitioner by the required majority as contemplated under Section 21 (1) of the Adhiniyam, but, it being contrary to the mandate of Section 21(2) denying the petitioner his right to speak at, or otherwise to take part in, the proceedings of the meeting cannot be said to be validly passed, hence, is quashed. However, this order will not come in the way of the members, if they desire to move motion of no-confidence against the petitioner afresh in accordance with law.
9. Accordingly, the petition is allowed with no order as to costs.
C. C. as per rules.