^ ^- HIGH COURTOF CHHATTISGARH AT BILASPUR SB : HON'BLE SHRI JUSTICE DHmENDRA MISHRA W.P.ICl N0. 34 OF 2008 PETITIONERS ru (2) (4) (5) RESPONDENTS VERSUS w (2) ^^- (4) (5) f61 Aghnuraia Nishad, S/o. Manniilal, Nishad, Aged about 36 years. Chandrakala Sahu, W/o. Poonain Saliu, Aged about 30 years. Dileshwar Sahu, S/o. Tejram Sahu, Aged about 32 years. Toranlal Netam, S/o. Bhukhan Siugh Dhruw (Netam), Aged about 33 years. Premshankar Sahu, S/o. Guharani Sahu, Aged about 50 years. All above, R/o. VUlage Bhawaiiipi.u', Talisil Palai'i, District Raipur (CG) Statc of Chhattisgarh, Through: Secretary, Panchayat & Social Welfare, DKS Bhawan, Raipur, District Ralpur (Cllhattisgarh) CoUector, Raipur, District Raipm' (CG) Upper Collector, Baloda Bazar, District Raipur (CGj Sub Divisional Officer (Revenue) Prescribed authority, Baloda Bazar, District Raipur (CG) Nayab Tahsildar, Rupesh Kuinar Venna, Presiding Officer, Palari, District Ralpur (CQ) Gauri Bal, W/o. Kashirain Saliju, Aged about 48 yeai's, -—^1?^^:...?- (7) (8) p) (10) (11) (12) (13) (14) (15) (16) Sarpanch, Gram Panchayat Bhawanipur, Tahsil Palari, District Raiptir (CG) Shakuntala W/o. Bodhiram Sahu. Umrao Singh S/o Latel Dhruw. Pannanand S/o Mantram. Saliu. Chhitabal W/o. Pardeshi Sahu. Amrit Bai W/o. Keshav Rani Dliruw. Nirmala Bai, W/o. Qhanshvaman Sahu. Budharawa Ram, Baishakliu Nishad. S./o. ^^ Resp. No. 7 to 13 are resident of village Bhawanipur, Tahsil Palari, District Raipur (CG) TUak Ram S/o. Jantram Nishad. Narottam S/o. Suklal Nishad. Maniram. S/o. Devadas Satnami. Resp. No. 14, 15 & 16 are resident of Village Junwani, Gram Panchavat Bhawanipur, Tahsil Palari District Ralpur (CG) Present:- Shri Manoi Paraniue, counsel for the uetittoner. Shri Rajendra Agrawal, P.L. for the State. ShriP.P.Sahu,coiinselforrespondent No. 6. >^-,^:^*.~^--: ^F- •*^1:-K&S ,.»*' ORAL ORDBR (2nd April 2008) Dhirendra Mlshra, J With the consent of the parties, the matter was heard finally. 2. The petitioners by fhe instant petition under Article 226 of the Constitution of India has tmpugned ttie order of Annexiire P/6 dated 14.12.2007 passed by Upper Collector, Baloda Bazar, Distt. Raipur whereby the reference under Section 21(4) of fhe Panchayat Raj Adhiniyam, 1993 (for brevity the Act of 19931 filed by the respondent No. 6, Sarpanch, has been aUowed and the resolution of 'No Confidence Motion' dated 27.8.2007 passed in the m.eeting of Gram. Panchayat Bhawanipiir, has been set aside. 3. The undisputed facts are fhat the respondent No. 6 is elected Sarpanch of Gram Panchayat Bhawanipiir. The 'No Cpnfidence Motion' was submitted against her by twelve members of the Panchayat before the prescribed authority i.e. Sub Divisional Officer, Baloda Bazar, respondent No. 4 herein, on 6.8.2007. The matter was posted on 13th Aueust 2007 and on that date it was directed to convene a meeting of the meiabers of the Panchavat on 27th August 2007. Nalb Tehsildar, Palari, respondent No.5 herein, was appomted as presidine officer for the above meeting to consider the 'No Confidence Motion' against the respondent No. 6. The ineeting was convened on 27.8.2007, in which atl the 16 members of Gram. Panchayat Bhawanipur includmg fhe respondent No. 6 Sarpanch participated and the presiding officer declared that fhe m.0tion of No Confidence is -«•: carried out wifh fhe majorily of 12 members in favour and four against out of the total 16 members of fhe Panchayat. 4. A reference was filed by the respondent No. 6 Sarpanch against the above resolution passed against her on 27.8.2007 before the Upper CoUector, respondent No. 3 herein, on 25.9.2007. Initially, the reference was dismissed as barred by ti-m.e, however, the writ petition preferred by the respondent No. 6 was allo^yed and fhe matter was'remitted back to the Upper Collector/respondent No. 3 for reconsideration of the reference after notice to aU the concemed. Accordingly, fhe matter was again heard by the Upper CoUector/respondent No. 3, who, by the iinpugned order, set aside the 'No Confidence Motion' with an observation that compliance of Rule 3(3) of the Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice- President Ke Virudh Avishwas Prastav) Niyam, 1994 (for convenience 'the Rules, 1994') is mandatory and in the instant case, the notice of Wo Confidence Motion' was given on 6*h August 2007 whereas fhe meeting was convened on 27th August 2008 i.e. beyond the period of 15 day and it was in contravention ofthe m.andatory provisions ofRule 3(3) offhe Riiles, 1994. 5. Leamed counsel for the petitioners submits that from perusal of the proceedtngs of 'No Confidence Motion' (Annexure P/3) it would be evident that the respondent No. 6 Sarpanch was afforded an opportunity of putting up her case against the <No Confidence Motion' and she did not take any objection that the meeting. is being convened beyond fhe mandatoiy period of 15 days and therefore, a prejudice has been caused to her. AU the 16 raem.bers of Graca Panchayat, Bhawanipur participated in fhe said meeting without any objection and cast fheu' votes. The resolution bears the signatures of all the 16 mem.bers present in fhe meettni and the <No Confidence Motion' was carried out as 12 menibers voted in favour offhe resolution and 4 against. 6. Reliance is placed on the orders passed m. fhe niatters of Nancht^ai Vs. State of M.P. and others1 and Bhylin Dewanaan Vs. State ofM.P. andotherss. 7. On the other hand, Shri P.P. Saliu, leamed counsel appearing for the respondent No.6 Sarpanch, vehemently argued that sub-nile (3) of Rule 3 of the Rules, 1994 is mandatory. Even ' 2005 (1) MPU 200 2 2001(2)MPu372 .'SE^ otherwise, from perusal of the documents annexed wifh the petition it would be evident that the notices were dispatched on 20th August 2007 for service on the members of the Gram Panchayat Bhawanlpur for their presence in the meeting to be held on 27th August 2007 and fhus, there is a non-com.pUance of sub-rule (3) of Rule 3, whlch mandates that the notices are required to be dispatched before 7 clear days of fhe laeeting. It was further argued that though fhe leamed Upper CoUector/respondent No. 3 has not assigned any reason as to what prejudice was caused to the respondent No. 6 Sarpanch due to non-compliance of sub-rule (3) of Rule (3) of the Rules, 1994, however, the fact that only five members of the Panchayat have instituted this petition out of 12 members, who voted m favour of the 'No Confidence Motion'^goes to show that all fhe inembers were not tnterested in fhe 'No Confidence Motion' and if one member had voted agatnst the CNo Confidence Motion' in addition to four, it would have been defeated. 8. It is also argued that the Fiill Bench offhe M.P. High Coiirt, in fhe matter of Bhulin. Dewangan9, has upheld the decision of the nivision Rench in t.he matters of Muku Bal Vs. State of M.P.s wherein it has been held that requirement of convening the meetuie wittun 15 days as provided in the Rule 3(3) offhe Rules, 1994 is uiandatory. 9. I have heard leamed counsel for the parties and perused fhe material available on record including fhe impugned order. 10. The facts are not in dlspute. It is also not in dlspute that leamed Upper Collector/respondent No. 3 atlowed the reference under Section 21(4) of the Act of 1993 holding that convening the meeting wifhin 15 days from fhe date of receipt of 'No Confidence Motion', is niandatoiy and in the said order. it has not been uientioned as to what prejudice was caused to tihe respondent No. 6-~Sarpanch. It is also undisputed that respondent No. 6 1998(2)MPu661 '^ Sarpanch participated in fhe nieetuig wifhout ralsing any objection or pointing out any prejudice was caused to her in convening the nieettng beyond the period of 15 days. 11. In the matter of Muku. Bap the Division Bench of M.P. High Court considertng the provisions of sub-rule (3) of Rule 3 of the Riiles, 1994, has held that for the piirposes of Wo Confiden.cc Motion' reqiiireinent of convening the raeetmg within 15 days as provided in (he above rule, is inandatory. 12. The FuU Bench of the M.P. High Coiirt in the matter of Bhulin Dewangan2 in paragraph-15 has held fhus:- ' 15. —— The proceedings ofthe no-conjidence motion or other proceedin.gs under the Act are also assailable in this Code as Constttutioncil Caurt under ArtkSe 227 of the Coiistttution oflizdia. As has been construed by us, even thoiigh second part ofthe rule requirmg dispatch of notlce of the ineeting to the inembers is mandatorg, yet in every case of chcdlefige to the proceeding of no- confldence motion either before the CoUector or this Court, it would stttl be open to the Collector or this Court to find out whether vi a given case non-coinpUcaice of any part oftherule has infact resulted in anyfdilure of justice or has caused cazy soious prejudice to any ofthe parties. The general rute is that a mandatory proviswn q/~ law requires stnct compliance and ttw dtrectory one only substantial. But even whffre the provision is maiidatory, every non-coinplimice of tJie scune need not necessccrily result in nuMi^icadon. of the whole action. In a given situation even for non-fulfSbnent of mandatory requirement, the authortty empawered totake a dedsion may refuse to nuUi/y the actmn on the ground that no svbstantial prejudice had been cceused to the party affected or to caiy other party which would have cmy other su&stantiaZ interest in the proceeding..........." In the same paragraph it has been further held as under:- 'The provisions do evince an intention that a meeting of the no-cofifidence ri'iotion be ccdled within a reasofiable period ofnot 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 l/3Td of the total number of elected members as required by the flrst Proviso to sub-rute (1) uj'" Rule 3 and casi be lawfuH.y canied by a resolution rtisss^. i a^,r 7^ ^f- passed by majority ofnot less than 3/4th ofthePanchas present mzd voting and such inafoii.ty has to be fnore than 2f 3rd of the total number of Panchas constituting t/ie Panclvxyat m accordcoice with sitb-section (1) of Section 21 of the Act. Thjs beuig the substance of the proviswns under the Act and the rutes, a mere non- compliance of second part of sub-rule (3) would not in everg case nivalidate tlie action unless'the Collector while deciding the dispute under sub-sectmn 14) of Section 21 or this Court in exerdse of its supervisoi'y jurisdiction under Artide 227 of the Constitutton comes to the conclusion ttiat such iwn-compliance has caused serious prejudice to the affected offlcs bearer or has otherwise resulted mfailure ofjustice.' 13. Leamed Single judge the M.P. High Court in the m.atter of Nanchi Bcd1 relying upon the principles of law laid down by the FiiU Bench of the High Court tn the matter of Bhulin Dewangan2, has held fhat where a ineeting has not been convened withm. a period of 15 days from the date of notice under Rule 3(1) of the Rules, 1994 and the petitioner (Sapranch) participated tn the meeting without raising any objection and the laotion was carried out with majority, no prejudice has been caused to the petitioner (Sarpanch) because of non-convening of meetmg within a period of 15 days. 14. In the instant case, as already pointed out in the foregoing paragraphs, fhe respondent No. 6 Sarpanch participated in the meeting and voted without any objection, all the 16 members of the Panchayat also participated and voted in the meettng dated 27th August 2007. Leamed counsel for the respondent No.6 could not point out as to what prejudice has been caused to the resDondent No. 6 Sarpanch bv converune the nieetine bevond the period of 15 days and the argiiment that the balance of the meuibers of the Panchayat was so everdy poised that one vote would have materially changed the outcoiae of fhe raeeting and this petition has been instituted by only flve members of the Gram Panchayat, may not be consta'ued that any prejudice was caused to the Sarpanch. 15. In view of above, since no prejudice was caused to fhe Sarpaiich because of non-coinpliance of sub-rule (3) of Rule 3 of the Rules, 1994, the impugned order of the Upper CoUector settmg aside the resolution of No Confidence against the Sarpanch/respondent No.6 cannot be sustained. 16. In the result, the writ petition is aUowed. The iinpugned order dated 14.12.2007 (Annexure P/6) is set aside and the resolution of Annexure P/3 is declared to be passed in aecordance with law. 17. No order as to costs. Sd/- Dhirendra Mishra - Judge