mOH COURT OF CHHATTISGARH AT BILASPUR S.B. HON'BLE SHRI DHIRENDRA MISHRA, J W.P. (Q No.3952 of 3007 Writ petitlon under Articte 226 of the Constitutfon oflndla PETmONEK RESPONDBNTS Versus 1. 2. 3. 5. Smt. Indramati W/o. Punu-am Aged about - 40 years R/o. Village-MaUa, Oram Paiicliayat Sarseni, P.S. & Tahsil Masturi, Distt. Bilaspur (CO) State of Chhattisgarh Through Secretaiy, Panchayat Department, Bhawan, Raipur (CG) DKS The CoUector, BUaspur, Distt.-Bilaspur (CG) The Sub Divisional Officer Revenue, BUaspur Distt.-Bilaspur (CGj The TahsUdar, Talisll-Mastiu'i, Distt. Bilaspur Oram Panchayat, Sarsenl Through:-Secretary of Qrain Panchayat Sarsem, TahsU- Masturi, Distt.-Bilaspur (CG) Present:- Mr. Shailendra Dubey, counsel for the petitioner. Mr. NK Agrawal, Dy. Advocate Qeneral for fhe State. ORDBR (Passed onQ-^Sune, 2008) Dhirendra Mishra. J Facts necessary for deciding this petition are that the petitioner is elected Sarpanch of Gram Panchayat-SarsenL On 18.10.2006 Shri Rajkumar Prajapati-Upsrapanch and other Panchas submitted an application before the Sub^)ivisionaL Sh^^'^Ssw.-S^ ^ OflBcer, Masturi for movuig "No Confidence Motion'' against (he petitioner. The Sub Dhnsional Officer after recording satisfaction Chat (he Motion has been moved by minimiim requisite number of Panchas, appointed TahsUdar, Masturi as Presiding OfEieer and fixed 1.11.2006, the date for consideration of "No Confldence Motion". Meeting of fhe Panchayat was held at F'runaiy School, Sarseni on the due date by the Presiding Of6cer. Eleven members out of total fifteen members particlpated in fhe said meetfng and all of them voted in favour of "No Confidence Motion". However, the Presiding OflBcer declared that fhe "No Confidence Motion'' has not been passed with an observation fhat the number of votes in favour of fhe Motion and number of Panchas constituting the Panchayat, both the conditions have not been futfilled and accordir^ly, submitted his report of Annexure P/2 to the Sub Divlsional Of&cer and prescribed aufhority, BUaspur. The Sub Divisional Ofiicer, after recenring the above report of the TahsUdar, vide order dated 7.11.2006 held that in the Oram. Panchayat-Sarseni total number of Panchas 1s 15, 11 menibers were present in fhe meetmg held for consideration of "No Confidence Motion" and all voted in favour of the Motion. Section 21 of the Panchayat Raj Adhiniyam, 1993 (for brevily the Act, 1993^ stipulates that the "No Confidence Motion" is to be passed by majority of not less than three fourfh of fhe Panchas present and voting and such inajority is more than two third of the total number of Panchas constitutmg the Gram Panchayat. In the instant case, since 11 members have voted m. favour ofresolution out of 15, both the conditions for passir^ of "No Confidence Motion" stand satisfied and accordingty, the Sub Divisional Offlcer held that the "No Confidence Motion" against the petitioner has -been passed. 2. The petitioner preferred reference agauast fhe order of fhe Sub Divisional OfEicer before CoUector, Bilaspur, which was rejected by fhe Collector vide order dated 12.2.2007 of Aiinexure P/5. 3. Leamed coiinsel for the petitioner argued that there is no provision ui the Act, 1993 which empowers the pFescribed authority to change/modify dedsion of fhe preslding officer aad only reference under Section 21(4) is remedy, which lies before the CoUector. In the instant case, the Presidii^ Officer has categorically held that both the conditions necessary for passing of the "No Confidence Motion" have not been satisfied and thereafiter, declared that fhe "No Confldence Motion" has not been passed. The Sub Divisional Ofilcer and prescribed authonty vide order dated 7.11.2006 declared the "No Confldence Motion" passed. Thus, fhe above order of the Sub Divisional Ofilcer was without ji.insdiction. The CoUector ought to have allowed the reference of the petitioner and set aside the order of fhe Sub Divlsional OfBcer. 4. From perusal of the proceedings of Gram Panchayat- Sarseiii, dated 1.11.2007 ofAnnexure P/1, it is clear that out of 15 Panch^, only 11 Panchas participated and voted in favour of the "No Confidence Motion". Leamed coiinsel for the petitioner does not dispute that both the condltions mentioned in sub-section (1) of Section 21 of the Act, 1993 were satisfied and fhe Motion was carried out by requisite niunber of Panchas. However, it was argued fhat illegality, if any, committed by the Presiding Ofiicer, could be corrected only by way of reference before fhe Collector under Secdon 21(4) and the Sub Divisional Ofiicer had no jurisdiction to substitute the declaration of the Presiding Of&cer by his own declaration that the resolution is passed. 5. Referring to Rule 5(6) of the Chhattt^arh Panchayat (Gram Panchayat Ke Sarpanch Tatiaa Up-Sarpanch, Janpad Panchayat Tafha Zila Panchayat Ke President Tatha Vice- President Ke Virudh Avishwas Prastav) Niyam, 1994 (for brevity 4 *<1. ^- the Rules, 1994") it was argued fhat a duty is caste upon fhe Presiding Of&cer that after voting is over, he shall take out the baUot papers fitim fhe ballot box and sort out fhe votes for aod against the motion. If fhe number of votes in favour of (he motion fulfills fhe requirement of sub-section (1) of Section 2 1, the Presidir^ OflEicer shall declare fhat the motion of no confidence is passed. There is no prcwision in the Act, 1993 which empowers fhe Sub Divlsioiial Officer to declare the "No Confidence Motion" passed. The Collector wifhout considering the provisions of the Act, 1993 rejected fhe reference, whlch 1s, on fhe face of it, yi^al and unsustamable. 6. On fhe other hand, Shri N.K. Agrawal, leamed Dy. Advocate General vehemenfty argued that both the conditions of sub-section (1) ofSection 21 ofthe Act, 1993 have been fulfiUed as observed by the Sub DMsional OfBcer and not disputed by the petitioner. The CoUector whUe deciding the reference of tfae petitioner under sub-section (4) of Section 21 has rejected the aTgument of fhe petitioner on the groiind that as per Section 21(1) of the Act, 1993 fhe resolution is duSy passed and confirmed fhe order of Sub Divisional Officer. 7. I have heard leamed counsel for both the parties and perused (he material available on record as also fhe unpugned order. 8. Tn thfi matters of JKoushnn Deen Vs. Preett Laf^ while considerii^; fhe scope of exercfee of supervisoiy and extraordinaiy jurisdiction envisaged under Articles 226/227 of the Constitution of todia, the Hon'ble Supreme Court has held tn paragra.ph-12 thus; '12. We are grea&y distwbed by the insensitivity reflected in the onpugnedjudgment rendered by the leccmed smgle Judge in a case wherejudwicd msnd would be terapted to utSsze aR possible legal measures to unpccrt justice to a man mufflated so autrageously by his cruel desttity. The High Court 'AIR20023C33 non-suxted hun in exerdse of a supennsory and extraordinan/ jurisdiction envisaged under Artiide 227 o/ the Constctution. Tiine cmd agaxn this Court has remmded that the pawer conferred on the High Court under Artbdes 226 and 227 of the CoitsVtation is to advcmce Justice and not tothwart it. (Vide State of Uttar Pradesh v. Distrwt Judge, Umiao and others. (ASR 1984 SC 1401)). The very purpose of such constitutioncd powers bemg asnferred on the High Courts is that no man shauld be subjected to injustice by violatmg the lcau. The look out of tlw High Court is, ttierefore, not merely to pick out any error of law through an acadeimc angle but to see whether aijustice has resultsd on account of any erroneous interpretcction of kav. If justice becaine the byproduct ofccn erroneous wew oflcau the High Caurt is not expected to erase such justwe in tfie name ofcorrecting the error oflaw. * q. Tn the matters of Amrendra.^ingh Vs. State of U.P.a the Division Bench of AUahabad High Court while dealing wifh disquaUfication under Section 5A of U.P. Panchayat Raj Act has held fhat when it is evident fixim record, that the petitloner siiffers disqualification luider Section 5-A of fhe Act, it cannot be said that he had a legal and enforceable rig^it to continue in the ofilce sSter bein^ declared elected thou^i erroneously or UlegaUy, due to fault or ignorance or inlstake of the authority concemed by ignoriiig fhe disqualification possessed by (he petitioner and permitting him to contest fhe election. 10. In fhe instant case also, it is not in dispute that fhe motion of no confldence against the petitioner was canied out by the reqiiisite majority. The Collector exercising powers under Section 21(4) of the Act, 1993 rejected the reference of the petitioner and upheld (he order of the prescribed authonty, whereby the petitioner was removed fn»mthe post of Sarpanch as "No Confidence Motion" was carried out by the requisite majority and fherefore, in fhe considered opinion of fhis Court present is not a fit case where any interference is caUed for in exercise of jnrisdlction under Article 226 of the Constitution_rf India. 2008(2) ALJ 260 (DB) \ ^t 11. In fhe result, the petition being devoid of substance deserves to be dismissed at the admission stage itsetf and is accordingty, disiaissed. ,- : Sd/- 1 Dhirednra Mishra Jydge