Madhya Pradesh High Court
Santosh Kumar Singh vs State Of M.P. And Ors. on 29 October, 2007
Equivalent citations: 2008(1)MPHT383
ORDER Abhay M. Naik, J.
1. Petitioner was elected as Sarpanch of Gram Panchayat, Jamua No. 1 on 23-1-2005. SDO and Prescribed Authority, Vikash Khand, Majhauli, District Sidhi vide Annexure P-3, dated 29-5-2007 convened a meeting on 12-6-2007 on a motion of no confidence against the petitioner. Shri Santosh Niraj, Naib Tehsildar was appointed as a Presiding Officer. A resolution of no confidence was ultimately passed on 12-6-2007 against the petitioner on the basis of 15 votes cast in favour of no confidence as against 3 votes cast against it.
2. It has been slated in the petition that the said Presiding Officer was not keeping good terms with the petitioner and complaints were already made against him as revealed in Annexure P-4, dated 15-4-2007, Annexure P-5, dated 7-6-2007 and Annexure P-6, dated 8-6-2007. Further complaints as revealed in Annexures P-7 to P-10 were also made to the effect that the Panchas were under pressure and the no confidence motion was being passed without their free will. Accordingly, it is stated that the no confidence resolution passed against the petitioner is arbitrary and mala fide and violative of principles of natural justice and the same is liable to be quashed.
3. Intervener raised a preliminary objection that the no confidence resolution is challengeable under Sub-section (4) of Section 21 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 and the petition is therefore liable to be dismissed on account of availability of alternative efficacious remedy. On merits it is contended that the resolution was validly passed and the petitioner having participated in no confidence proceedings has not been prejudiced in any manner. Accordingly, the petition is liable to be dismissed.
4. Learned Counsel for the parties including the learned Senior Counsel for intervener made their respective submissions which are being considered in the succeeding paragraphs.
5. Sub-section (4) of Section 21 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for brevity hereinafter referred to as 'Panchayat Act') contains a provision that if a Sarpanch desires to challenge the validity of the motion of no confidence under Sub-section (1) he shall within seven days refer the dispute to the Collector who shall decide it as far as possible within 30 days. Thus, obviously, there is an alternative efficacious remedy available to the petitioner against the impugned no confidence resolution contained in Annexure P-l. Undisputedly, a writ petition against such a resolution may be directly entertained by this Court under Article 226 of the Constitution of India if the impugned action is without jurisdiction or in violation of principles of natural justice or challenge to vires is involved or fundamental right is infringed.
6. In the present case, the Gram Panchayat has a power to pass a resolution of no confidence under Section 21 of the Panchayat Act. At this juncture, Ms. Smita Verma made the following three submissions to make out a case of violation of principles of natural justice:
(i) Presiding Officer was keeping bad terms with the petitioner which was complained at various occasions as revealed in Annexures P-4 to P-10. Such a Presiding Officer could not have been appointed in the matter of no confidence against the petitioner.
(ii) Votes in favour of no confidence motion were cast under threat/undue pressure as revealed in Annexures P-7 to P-10. Therefore, no confidence motion stood vitiated.
(iii) Petitioner was not given an opportunity to speak as required under Sub-section (2) of Section 21 of Panchayat Act. This has an effect of vitiation of the no confidence resolution.
7. As regards appointment of Presiding Officer for meeting of Gram Panchayat for consideration of no confidence motion, it may be seen that the resolution is passed on the basis of votes cast by the Panchas. Merely by appointment of a particular person as a Presiding Officer, the voting exercised by Panchas is not vitiated. Panchas are required to cast their votes at their free will and the Presiding Officer has no role under law to influence the voters. In such a situation merely on appointment of a particular person as Presiding Officer in the meeting of no confidence, the principles of natural justice cannot be said to be violated unless the aggrieved party establishes that prejudice was caused to him due to such appointment. In the present case, the petitioner has not specifically averred in the writ petition that what prejudice was caused to him on account of appointment of the said Presiding Officer. Thus, in the absence of causing of prejudice due to the appointment of a particular Presiding Officer, challenge to the no confidence resolution on this ground is not acceptable.
8. As regards the alleged threat or undue pressure on the Panchas, it is observed that the petitioner has failed even to place on record before this Court affidavits of Panchas who may be said to have cast votes under undue pressure or threat. This apart, it requires an oral evidence to establish that any kind of threat was extended to a particular Pancha. Such fact could have been proved only in a dispute referable under Sub-section (4) of Section 21 of Panchayat Act. In the absence of affidavits of the concerned Panchas it cannot be treated as established that the votes were not cast by Panchas at their free will.
9. As regards the third submission Ms. Smita Verma, learned Counsel contended that under Sub-section (2) of Section 21 a Sarpanch has a right to speak in the meeting of no confidence. This opportunity having not been given to him, the no confidence resolution is liable to be quashed.
Interpreting the provision, it has been contended that the petitioner had a right to speak in the meeting of no confidence and had a right to take part in the proceedings of the meeting. Admittedly, the petitioner has taken part and has participated in the proceedings of no confidence motion. It is not the case of the petitioner that he was prevented from speaking in the proceedings of no confidence meeting or was denied his right to speak in such meeting. It has been contended that the Sarpanch had a simultaneous right of speaking as well as taking part in the proceedings of meeting because a coma is inserted before a conjunctive word "or". According to Ms. Verma, learned Counsel the word "or" preceded by coma is to be construed as "and". Thus, in the absence of opportunity of availing right to speak, the no confidence motion is stated to have been vitiated. The exact relevant sentence of Sub-section (2) of Section 21 is as follows:
The Sarpanch or 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.
(Underlined by me) In order to construe the provision it is necessary to examine that what is the requirement according to this provision. Does it require that the Sarpanch ought to have been given a right to speak simultaneously with a right to take part in the proceedings or it is sufficient that he is given an opportunity to take part and has not been prevented from exercising his right to speak. Ms. Smita Verma, learned Counsel did not substantiate her aforesaid contention either by English Grammar or by Judge made law.
10. The word "or" is a conjunction. Conjunctions are divided into two classes:-- Co-ordinating and Subordinating. The word "or" is one of the chief Co-ordinating Conjunction. A Co-ordinating Conjunction is defined as one which joins together clauses of equal rank. Co-ordinating Conjunctions are further divided in four kinds : (1) Cumulative or Copulative, (2) Adversative, (3) Disjunctive or Alternative, (4) Illative. According to the well known Grammarians P.C. Wren and H. Martin "or" is a disjunctive or alternative conjunction which expresses a choice between two alternatives. In 120th Edition of Wren and Martin's High School English Grammar and Composition the word "or" expresses a choice between two alternatives. In this book the following illustrations have been given:
(i) She must weep, or she will die.
(ii) Either he is mad, or he feigns madness.
Thus, the punctuation of 'comma' merely provides an emphasis and does not take away the regular meaning of the conjunctive word "or".
11. There was an occasion before the Hon'ble Supreme Court of India to consider the effect of comma before the conjunction "or" in the case of M.K. Salpekar v. Sunil Kumar Shamsunder Chaudhuri AIR 1988 SC 1841. It was observed in Paragraph 7:
The punctuation 'comma' in the Sub-clause after "alternative accommodation" and before the rest of the sentence indicates that the last part of the Sub-clause namely "and does not reasonably need the house" governs only the second part of the Sub-clause.
There was again a similar occasion before the Apex Court in the case of Sama Alana Abdulla v. State of Gujarat . I may profitably quote Paragraphs 7 and 8 as follows from the said decision:
7. It was next contended that the High Court has misinterpreted Section 3(1)(c) and erroneously held that the sketch, plain, model, article or note or other document or information need not be secret for establishing an offence under that section. In order to appreciate this contention, it is necessary to refer Section 3 which reads as follows:
3. Penalties for spying.-- (1) If any person for any purpose prejudicial to the safety or interests of the State--
(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or
(b) makes any sketch, plan model or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or
(c) obtains, collects records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States.
The High Court held that the word 'secret' in Clause (c) qualifies only the words "official code or pass word" and not "any sketch, plan, model, article or note or other document or information". The reason given by the High Court is that after the phrase "any secret official code or pass word", there is a comma and what follows is thus not intended to be qualified by the word 'secret'. The Calcutta High Court in Sunil Ranjan Das v. The State (1973) 77 Cal WN 1061, has also taken the same view. It has held that the word 'secret' in the said section qualifies officials code or password and not an sketch, plan, model, article or note or other document or information. This is clear from the comma and the word 'or' which comes after the word 'password'.
8. In our opinion, the view taken by the Gujarat High Court in this case and by the Calcutta High Court in the case of Sunil Ranjan Das is correct. We find that the said interpretation also receives support from Sub-section (2) of Section 3. While providing for a presumption to be raised in prosecution for the offence punishable under that section the phraseology used by the legislature is "if any sketch, plan, model, article, note, document or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published or communicated". From the way the said section is worded it becomes apparent that the qualifying word 'secret' has been used only with respect to or in relation to official code or password and the legislature did not intend that the sketch, plan, model, article, note, document or information should also be secret. As we do not find any substance in the second contention raised on behalf of the appellant it is also rejected. In the result, the appeal fails and is dismissed.
12. Accordingly, I hold that the petitioner who participated in the proceedings of no confidence and was not prevented from exercising his right to speak in such meeting cannot assail the proceeding of no confidence for violation of the provision contained in Sub-section (2). He has admittedly participated in the proceedings of no confidence and no prejudice is established to have been caused to him. He had the full opportunity of exercising his right to speak in such a meeting and he having failed to exercise such opportunity, cannot be permitted to impugn the proceedings on the ground of alleged violation of Sub-section (2).
13. Ms. Smita Verma, learned Counsel placed reliance on the decision of this Court in the case at Nagsai v. State of Madhya Pradesh and Ors. . Facts of the case of Nagsai (supra), are quite distinguishable in as much as it was found in that case that the petitioner was not allowed to speak and cast his vote in the meeting of no confidence motion. In the present case there is neither such allegation nor any material on record to establish that the petitioner was not allowed to speak in the meeting. On the contrary, petitioner did participate and had a full opportunity to speak against the no confidence motion. This having been not availed, reliance on Nagsai's decision (supra), is out of place.
14. In the result, the petition has no force, firstly, on account of availability of alternative efficacious remedy and secondly, also for want of substance on merits.
15. Accordingly, the writ petition is dismissed, however, without order as to costs.