Madhya Pradesh High Court
Sadan Kumar vs State Of M.P. And Ors. on 27 February, 2002
Equivalent citations: 2002(2)MPHT257
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Invoking the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of order dated 21-11-2001, Annexure P-4, passed by the Additional Commissioner, Sagar Division, Sagar, the respondent No. 2 herein, in Revision Case No. 106-A-89/2001-2002 whereby he has stayed the order passed by the Additional Collector, Sagar in Case No. 2-A/89/2001-2002.
2. The facts as have been uncurtained are that the petitioner is the elected Sarpanch of Gram Panchayat, Bansiya Bardo, District Sagar. A 'Motion of No Confidence' was initiated against the petitioner by some of the members of the said Gram Panchayat and the Naib Tehsildar, Circle Surkhi, District Sagar, the respondent No. 6 herein, was appointed as the Presiding Officer of the meeting which was scheduled to be held on 8-10-2001. The 'Motion of No Confidence' was passed against the petitioner. The Prescribed Authority vide order dated 9-10-2001 contained in Annexure P-1 held that the 'Motion of No Confidence' had been properly passed. The said order was assailed by the petitioner by raising a dispute under Section 21(4) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Act') before the Collector, Sagar and the said authority vide Annexure P-2 dated 12-11-2001 came to hold that the 'Motion of No Confidence' was not properly passed against the petitioner, and accordingly, he set aside the 'Motion of No Confidence' dated 8-10-2001. After the said order was passed the Chief Executive Officer, Janpad Panchayat, Sagar, the respondent No. 5 herein, passed an order dated 21-11-2001 for giving of charge of Sarpanch to the petitioner. Thereafter, the respondent No. 7 who was functioning as incharge Sarpanch preferred a revision before the Additional Commissioner, Sagar forming the subject matter of Revision Case No. 106-A-89/2001-2002. The said authority admitted the revision and directed stay of order passed by the Additional Collector, Sagar. It is urged in the petition that no revision lies against the order of the Collector passed under Section 21 (4) of the Act and, therefore, the order passed vide Annexure P-4 is not maintainable.
3. A return has been filed by the respondent No. 7 contending inter alia, that the Sub-Divisional Officer, Sagar, the Prescribed Authority, appointed the Naib Tehsildar, Circle Surkhi as Presiding Officer to preside over the meeting relating to 'No Confidence Motion' which was held on 8-10-2001 and due notices were issued for holding of such meeting. It is further putforth that meeting was held on the date fixed and out of total 17 members, 12 members voted in favour of the 'No Confidence Motion' and 3 members voted against the 'Motion of No Confidence'. A copy of the proceeding has been brought on record as Annexure R-7/3. It is urged that the meeting was held as per the rules and there was no illegality in the same. It is further putforth that the Additional Collector interfered and set aside the resolution without hearing the members of the Gram Panchayat who were the necessary parties, as a result of which the respondent No. 7 has to prefer a revision. It is putforth that the Gram Panchayat was not made a party before the Collector and, therefore, the order passed by him is void ab initio.
4. I have heard Mr. A.K. Jain, learned counsel for the petitioner, Mr. S.K. Yadav, learned Government Advocate and Mr. S.K. Gangele, learned counsel for the respondent No. 7.
5. Mr. Jain, learned counsel for the petitioner has raised a singular contention that the revision preferred by the respondent No. 7 before the respondent No. 2 was not maintainable and, therefore, no order could have been passed by the said authority. He has placed reliance on the decision rendered in the case of Ramnath Kaushik v. State of Madhya Pradesh and others, 1999 (2) MPLJ 67.
6. Mr. S.K. Yadav, learned Government Advocate and Mr. S.K. Gangele, learned counsel for the respondent No. 7 have submitted that the revision was maintainable before the Additional Commissioner, Sagar, the respondenl No. 2 herein. To substantiate the aforesaid proponement they have placed reliance on the decision rendered in the case of Kandhilal Patel and Ors. v. State of M.P. and Ors., 1999 (2) JLJ 109.
7. I may at the very outset state that I am not disposed to dilate on the merits of the case though various documents have been brought on record to justify that the 'Motion of No Confidence' was passed against the Sarpanch of the Gram Panchayat in accordance with the Rules in-vogue. I will confine myself to the aspect whether the Additional Commissioner should have entertained the revision. To appreciate the aforesaid submissions it is apposite to refer to Section 21 (4) of the Act. The said provision reads as under :--
"21 (4). If the Sarpanch or the Up-sarpanch, as the case may be, desires to challenge the validity of the motion carried out under Sub-section (1), he shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide it, as far as possible, within thirty days from the date on which it was received by him, and his decision shall be final." On a perusal of the language employed therein it is quite plain that where a motion of no confidence is passed or failed, no appeal or revision lies against it, as it is neither an order nor any proceeding in any pending case. A 'Motion of No Confidence' is required to be moved and passed by the requisite majority as contemplated under the Act and under the Madhya Pradesh Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav Niyam, 1994 (hereinafter referred to as 'the 1994 Rules'). The procedure enjoined therein came to be interpreted in the case of Bhulin Dewangan v. State of M.P. and Ors., 2000(4) M.P.H.T. 69 = 2000 (2) JLJ 253 (FB), wherein in Paragraph 15 the Full Bench held as under :--
"15. The general rule is that non-compliance of mandatory require ment 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 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 members is mandatory, yet in every case of challenge to the proceedings 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-fulfilment of mandatory requirement of 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 of failure or 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 Rule of 1994 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 Sub-section (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 to the affected office bearer or has otherwise resulted in failure of justice."
8. I have referred to the aforesaid decision only to point out that the Full Bench had adverted to the scheme of the Rule in extenso. I have also referred to it because the Full Bench has referred to Article 227 of the Constitution. But the Full Bench was not dealing with the case whether a revision would lie or not.
9. In the case of Ramnath Kaushik (supra) S.K. Kulshrestha, J., while dealing with the 1994 Rules and M.P. Panchayat (Appeals and Revisions) Rules, 1995 came to hold as under :--
"The provision made in Sub-section (4) of the Section 21 provides for reference of a dispute to the Collector for his decision where the Sarpanch or the Up-Sarpanch, as the case may be, desires to challenge the validity of the motion carried out under Sub-section (1) of Section 21. The expression "carried out" employed in subsection (4) of Section 21 can only mean the consequence provided in Sub-section (1) of Section 21 which clearly indicates that it is only against a motion of no-confidence passed by the requisite majority that such a dispute under Sub-section (4) can be raised by the person against whom the motion has been passed. The motion of no-confidence was declared by the Presiding Officer as having not been passed for want of requisite majority of 3/4th of the panchas present and voting with the result, none had a right to file any dispute under Sub-section (4) of Section 21 of the M.P. Panchayat Raj Adhiniyam. It is clear that an appeal under Rule 3 of the M.P. Panchayats (Appeal and Revision) Rules, 1995 was not maintainable against a no-confidence motion whether carried or failed and the Additional Collector, therefore, did not have any jurisdiction to entertain the same. The provisions contained in Rule 3 provide for an appeal to the appellate authority against the order passed by the subordinate authority enumerated therein under the provisions of the Act or Rules or Bye-laws. The allusion to the Rules in Rule 3 is not to the Appeal and Revision Rules but to other rules under which such orders are passed with the result, an order passed in appeal under the provisions of Rule 3 of the Appeal and Revision Rules is not further appealable to the appellate authority by way of a second appeal. Under these circumstances no appeal against an order passed in appeal under Rule 3 by the Additional Collector was maintainable before the Commissioner with the result even the appeal filed by the petitioner against the order of the Additional Collector was also incompetent and the Additional Commissioner had no jurisdiction to entertain such an appeal and pass the order.
Both the orders were without jurisdiction. A perusal of Rule 5 shows that a Revision is maintainable as to the legality or propriety of any order passed by the subordinate authority or as to the regularity of the proceeding before such authority. A no-confidence motion cannot be classified either as an order or as a proceeding. No specific power of Revision has been granted in Rule 5 against a no-confidence motion. The no-confidence motion, not being any proceeding in a case, is not amenable to the jurisdiction of the authority in exercise of the power of Revision granted by Rule 5. The contention that even if it is held that the Collector did not have the power to entertain an appeal or to exercise power of revision granted under the Appeal and Revision Rules, the petitioner was not entitled to seek any relief under the power of Superintendence when it was manifest that the impugned order, although without jurisdiction, rectified a manifest error committed by the Officer appointed to preside over the meeting of no-confidence motion in declaring one vote invalid not tenable." (Quoted from the placitum)>
10. It is apposite to state here that the learned Judge had referred to the decision rendered in the case of Ram Charan Ahirwar v. Sub-Divisional Officer, Jatara, 1997 (II) MPJR 357, wherein C.K. Prasad, J., came to hold that when in a statute different words are used, there is presumption that they are not used in the same sense. The learned Judge made a distinction between the orders and the resolutions. Thus, in the case of Ramnath Kaushik (supra) it has been held that a motion of no-confidence cannot be challenged either in appeal or revision but when a motion of no-confidence is passed and the aggrieved party raises a dispute under Section 21 (4) of the Act and the authority concerned, namely, the Collector decides the same he passes the order under Section 21 (4) of the Act and that becomes a decision which is final. It is submitted by Mr. Jain that as finality is attached to the order passed by the Collector, no revision would lie against the said order. In the case of Kandhilal Patel (supra) R.S. Garg, J., after referring to the decisions rendered in the cases of Naumal Bros. through Gopaldas of Mandsaur v. Alihussain Kamarali and Ors., 1961 JLJ 450, Kailashchandra v. District Judge, Bhopal, 1963 JLJ 163, Surya Prasad v. Mohanlal, 1965 MPLJ SN 26, Than Singh and Ors. v. Board of Revenue and Ors., 1967 RN 396, Indian Homeopathic Medical Association, Calcutta and Ors. v. Kanai Lal Pal and Anr., AIR 1950 Calcutta 263, and Jetha Bai and Sons v. M/s. Sunderdas Rathenai, AIR 1988 SC 812 came to hold in Paragraph 11 as under :--
"11. Section 91 which relates to appeal and revisions provides that an appeal or revision against the order or proceeding of a Panchayat and other authorities under the Act shall lie to such authority and in such manner as may be described. The State Govt. has framed the M.P. Panchayats (Appeal & Revision) Rules, 95. Rule 3 provides that in case of an order passed by the SDO under any provisions of the Act or Rules or Bye-laws made thereunder, an appeal shall lie to the Collector. In case of an order passed by the Collector, an appeal shall He to the Commissioner and in case an order is passed by the Commissioner or Director of Panchayats to the State Government. Rule 5 relating to the revisions provides that the State Govt., the Commissioner, the Director of Panchayat, the Collector may on its/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of, the authority Sub-ordinate to it/him call for an examine the record of any case pending before, or disposed of by, such authority and may pass such order in reference thereto as it/he may think fit. It cannot be disputed that in the hierarchy and according to Rule 3 of the Rules, the Collector is Sub-ordinate to the Commissioner. If an order is passed by the Collector, an appeal shall lie to the Commissioner, therefore, the Commissioner would also have the revisional jurisdiction to call for and examine the records of a matter where an order is made under the Act by the Collector. Reverting back to Section 21 (4), it can clearly be seen that Section 21 (4) does not provide for an appeal. When Section 21 (4) provides for no remedy of appeal then provisions of Section 91 relating to the appeal would not be applicable. Any person aggrieved by the motion carried out under Sub-section (1) of Section 21, has a right to refer a dispute to the Collector who is expected to decide the same possibly within thirty days of submission of the dispute. On face of Section 21 (4), an appeal shall not lie either to the Collector or to the Commissioner or to any other authority. Section 21 (4) if does not refer to an appeal then consideration of the dispute treating it to be an appeal would prima facie be illegal and contrary to the provisions of law. In the present case, the Addl. Collector heard the matter as an appeal and disposed of the same without recording any evidence, etc. Whether the procedure adopted by the Addl. Collector was proper or not would be dealt separately but for the purposes of consideration of the maintainability of the revision petition, this Court must hold that against the order passed under Section 21 (4), a revision before the Commissioner shall be maintainable because the order passed by the Collector is an order passed under the Act and the Commissioner being the revisional authority is certainly entitled to call for the records either suo motu or on the application of any party for the purpose of satisfying himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of the authority Sub-ordinate to him. The Commissioner would certainly be entitled to examine the records of any case pending before or disposed of by an authority Sub-ordinate to him under the Act. The first challenge thrown to the order passed by the Addl. Commissioner deserves to and is accordingly rejected. It is held that the revision before the authority (Addl. Commissioner) was competent." 11. From the aforesaid enunciation of law there remains no iota of doubt that a revision before the revisional authority is maintainable. Hence, I am not inclined to accede to the submission of Mr. Jain,
12. Though I have not acceded to the submission of Mr. Jain, I am inclined to direct the revisional authority to dispose of the revision within a period of six weeks from the date of receipt of the order passed today. Interim order passed by this Court shall remain in force till disposal of the revision. I have directed continuance of the stay order inasmuch as the petitioner had succeeded before the Collector in the dispute raised under Section 21 (4) of the Act. However, I may not be understood to have expressed any opinion on the merits of the proceeding.
13. The writ petition is accordingly disposed of without any order as to costs.