'ii'i-iff'mTni HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (cl No. 1 200 of 2007 Petitioner : Smt. Abha Patel Versus Respondents : State of Chhattisgarh and others ^'.. M_ Post for order on ^ March, 2007 Sd/- Satish K. Agnihotri Judge HIGH COURT OF CHHAmSGARH AT BILASPUR WritPetition fc) No. 1200 of 2007 Petitioner ResDondents SB Smt. Abha Patel wife of Shri Manohar Lal Patel, aged about 40 years, Sarpanch, Village Panchayat Kaunsara, Janpad Panchayat Bagbahra, District Mahasamund (C.G.). State ofChhath'sgarh, Through: the Secretary, Department of Panchayat and Social Walfare, D.K.S. Bhawan, Raipur (C.G.). The Collector Mahasamund, District Mahasamund (C.G.). The Sub Divisional Officer (Revenue) (Prescribed Authority) Mahasamund, District Mahasamund (C.G.). The Tahsildar (Presiding OfScer), Mahasamund, District Mahasamund (C.G.). Fsrawan Kumar Dhruv Son of Shri Kneduram Dhruv, Up-Sarpanch, Village Panchayat Kaunsara, Janpad Panchayat Bagbahra, District Mahasamund (C.G.). Sukalu Ram Sahu Son of Shri Jahat Ram Sahu, Panch Ward No. 1; Nand Kumar Chakradhari Son of Shri Janakram Chakradhari, Panch Ward No. 2; Smt. Dhasni Bai Wife of Shri Dashraft Sahu, Panch Ward No. 3; Smt. Shailendri Bai Wife ofShri Gendram Thakur, Panch Ward No. 4; Ramadhar Sen Son of Shri Dhasiya Sen, Panch Ward No. 5; Smt. Shayama Bai Sahu Wife of Shri Kheduram Sahu, Panch Ward No. 8; Janakram Dhruv Son ofShri Sukhiram Dhruv, Panch Ward No. 9; Ghasiram Dhruv Son of Shri Panchuram Dhruv, Panch Ward No. 10; Al! are rssidents ofViltags Kaunsara, Village Panchayat Kaunsara, Janpad Panchayat Bagbahra, District Mahasamund (C.G.). Hon'ble Shri Satish K. Aanihotri. J. Versus :1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11 12. 13. Present: Mr. V.K. Pandey, Advocate for the petitioner. Mr. Utkarsh Verma, Dy. Govt. Advocate for the respondenls No.1to4/Stete Mr, Manoj Paranjape, Advoeate for the respondents No, 5 to 13/Caveator. \~> ORDER (Passed on this /? day of March, 2007) By this petition, filed under Article 226 of the Constitution of India, tt>e petitioner challenges the legallty and validity of the order dated 12.2.2007 (P/1), passed by ttie Collector Mahasamunct/respondent No.2. The indisputable facts, in nutshell, are that the peUtioner is the elected Sarpanch of Village Panchayat, Kaunsara, Janpad Panchayat, Bagbahra, District Mahasamund. A meeting was called on 5.7.2006 to consider 'No Confidence Motion' against the petitioner. Out of 13 membere of the Panchayat, 9 members were present and cast their votes in the motion by putting a mark as prescribed under Rule 5 of the Madhya Pradesh Panchay<.»t (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastev) Niyam, 1994 (hereinafter referred to as the Niyam, 1994'). 8 members put mark (\/) and 1 member marked as (C,). Accordingly, 1 vote was declared invalid, as it was not in accordance wMi a mark prescribed under Rule 5 of Uie Niyam, 1994. Thus, the m<rtion could not be "carried ouf. The Presiding Officer/Tahsildar after holding that to carryout 'No Confidence Motion', 10 members were required and in the proceedings onty 8 votes were cast in favour of 'No Confidence Motion'. Thus, 'No Confidence Motion' was declared as not "carried ouf. Being aggrieved, the Up-Sarpanch and 8 other members made a reference to the Collector, Mahasamund under ttie provisions of the Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Adhiniyam, 1993'). The Collector, after having held the ballot paper indicating mark (C;) as valid, allowed the reference and set aside the order passed by the Tahsildar in the T" \ 6. meeting declaring that 'No Confidence Motion' was not "carried ouf' vide order dated 8.8.2006 (P/5). Against the order dated 8.8.2006, passed by the Collector, Mahasamund, the petitioner had filed a writ petition, being Writ Pstition No. ^57/2006, bsfore this Court. This Court, vide ordsr dated 11th December, 2006 (P/7), after having noticed that no opportunity of hearing was afforded to the elected Sarpanch, who is the most affected party in the adjudication, set aside the order dated 8.8.2006 and remitted back the matter to the Collector for fresh decision after issuing notice to the petitioner, in accordance with law. The Coltector by the order dated 12.2.2007 (P/1) maintained the order dated 8.8.2006 (P/5), passed earlier, without considering the question asto whether the application/reference against Uie order passed by ttie Tahsildar declaring that 'No Confidence Mouon' has failed, was maintainable. Shri V.K. Pandey, teamed counsel appearing for the petitioner wouM submit that a mark (C.) Is not correct mark to consider valid vote in favour of 'No Confidence Motion'. It was further contehded that a reference could be made to the Collector if 'No Confidence Motion' has been carried out, not otherwise. H: was next contended that 9 members, out of 13 members present, does not constitute a majority of less than three fourth of the panchas present as there should be 9 panchas, who cast their votes in favour of 'No Confidence Motion', treating 1 vote, which does not bear the correct mark as the same mark is not prescribed under the provisions of Rule 5 of the Niyam, 1994asalsovalid. Per contra, Mr. Manoj Paranjape, learned counsel appearing for the respondents No. 5 to 13 would contend that the intention has to be looked into since there was no cross mark, but a mark (C,) which Is similar to other mark (i^-) vras rightly treated as vatid vote in favour of 'No Confidence Motion'. Learned counsel further oontended Uiat out of 13 members, tuo third constitutes 13 x2/3 = 8.6 means 9. S members were present and three fourth of the total members present i.e. 9 x 3/4= 6.75 means 7. Even if, 1 vote is declared as invalid, but 8 members have cast their votes in favour of 'No Confidence Motion'. Thus, 'No Confidence Motion' could have been held as "carried out'. He further contended that the dispute with regard to the validity of the motion carried out as prescribed under Section 21 (4) of the Adhiniyam, 1993 was rightly entertained by the Collector as the required votes i.e. two third ofthe members presence was 7 and in the present case, motion was held as "failed". Thus, the only remedy available was reference of the dispute by the Up-Sarpanch and other members to the Collector. 8. Mr. Utkarsh Verma, leamed Deputy Govemment Advocate appearing for the respondents No. 1 to 4 adopts the submission made by learned counsel appearing for the respondents No. 5 to 13. It was contended that the Collector has no power to entertain the dispute under Section 21 (4) of the Adhiniyam, 1993 in the case where the Presiding Officer, i.e. Tahsildar held that 'No Confidence Motion' has faited. 9. I have heard learned counsel appearing for the parties and have pemsed the pleadings and documents appended thereto. It is admitted fact that there were 13 members constituting the village Panchayat, Kaunsara and out of 13 members, Uie requirement under Section 21 (1) of the Adhiniyam, 1993 is presence of two third of the total numbers of panchas constituting the Gram Panchayat. Two third of the total numbers would be 13 x 2/3 = 8.6 means 9. 9 members were present. Thus, the corom was complete for consideration of 'No Confidence Motion'. The second requirement is to carryout 'No Confidence Motion' by three fourth of the panchas present and voting, if the resolution is passed by a majority of not less than three fourth of ^'^^:^Ss.^si,^K^?SSsKSit»^.~SS''S. present panchas and voting, the motion is held as "camedouf. In the present case, three fourth of 9 members present means 9x3/4= 6.75 means 7. 8 members have cast their votes by putting mark (i^) and 1 vote, which has put mark, but not cross as required under Rule 5 of the Ni^m, 1994, even ifthe same is ignored, 'No Confidence Motion' has been "carried ouf as more than 7 members have cast their votes in favour of 'No Confidence Motion'. Thus, the finding ofthe Presiding Officer in the meeting heid on 5.7.2006 that 'No Confidence Motion' failed is not correct. 10. It is beneficial to quote Section 21 (1) and Section 21 (4) of the Adhiniyam, 1993. "21. No-confidence motion agalnst 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 thlrd of the total number of Panchas constituflng the Gram PanchayaS^or the time being, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall cease to hold office forthwith. Section 21 l(4) If the Sarpanch or the Upsarpanch, 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 moUon was carried, refer the dispute to the Collector who shall decide it, as fer as possible, within thiriy days from the date on which it was recewed by him, and his decision shall befinal.]" 11. On bare reading of the provisions of Section 21 (1) of the Adhini^m, 1993 it is held that 'No Confidence Motion' was carried out even if 1 vote bearing the disputed mark is declared as invalid. The motion has been "carried ouf' by a clear majority. 1 do not consider it necessary to go into the validHy of the mark (C,). The Second question asto whether the Coltector has jurisdiction under Section 21 (4) of the Adhiniyam, 1993 is not necessary to be examined in the facts of the present case. Thus, 1 am not inclined to examine the said question in this case. 12. This Court in the case of Ghanshyam Yadav vs. Rameshwar Sahu & others (W.P. No. 6774 of 2006), decided on 5.12.2006, held that no prejudice, whatsoever is caused in any manner vrtien the resolution was passed by overwhelming majority. Thus, 'No Confidence Motion' cannot be declared as null and void. In the present case, the position is the same as out of 9 members i.e. two third of the members constituting Panchayat, were present and cast their votes. 8 votes more than three fourth of the present members present and cast their votes in favour of 'No Confidence Motion". Thus, 'No Confidence Motion' was "canied ouf. There is no other ground raised in regard to the conduct ofthe proceedings. 13. As a result and for the reasons aforestated, the order 12.2.2007 (P/1) passed by the Collector, Mahasamund/respondent No. 2 is uphetd and the order passed by the Presiding Officer i.e. Tahsildar declaring 'No Confidence Motion' faited is set aside, holding that 'No Confidence Motion' was "cam'edouf'. 14. Accordingly, the writ petition is dismissed. No order as to costs. B/- Sd/- SatishK.Agnihotri Judge