IN THEHON'BLEHIGHCOURTOFCHHATtlSQARH AT:MLASPUR-, :,'' . •:::^,.;,.: 2^2^. PETm0NER: W.P.No: OF 2003 RESPONDENTS ^hagiratht Nirmalkar,_ ^ggd, 45 "^^^M:3s^ years, son ot ^tu-y yarpaHcn, GrampatichayatRaseda,resident of viUage Raseda, block- - Akaltara, teBsil- Janjgir, jBistrict Jarggir-Champa<Chhattisgarh) VERSUS' '-,,'•:;•.,. 1; . : ; / (1) State of Chhattisgarh, througfa. the Seeretary, department of Panchayat, Raipur(|C^S.) (2) Colleetor, Jatygir. - 0iampa, Janjgir, (Chhattisgal-hj), ' (3) Naib Tehsildar, Presiding Officer, Janjgir, district Janjgu-- Champa(Chliattisgarh5f (4) Raniakant Gzipta, aged 42 years, son ofShri Onkar Pi-asad. (jupta, resident of yillage Raseda, Block Afcaltara, tehsU: Jarygir, distriet Ja.rygir - Champa (Chhattisgarh) .WRIT^ UNDER ;1 :;...;^. r::'[.4jttECI^^- ;1:.: G'G^STITUTION'OF-INDIA. : ':• 1 " . .' ' The petitiQjQE^most faumbly^^a^ Isegs fo subinit'as:un3erf-':'p''.';:'; ' ' :'1 '•' .;:,;1-":.:. ..:.'.. 1. PARTIOGL^RS OF THE PETITIONER : - ^.^.^ HIOH COUET OF CHHATTISGARH AT BILASPUR WRFT PRTmON N0.2121 /03 Bhaglrathl Nlnnalkar Vs. StateofC.O. &ors. ORDER Per Hon. Faldiruddin.J: By ttiis petltion iinder Article 226/227 of the Constitution of Inriia, fhe pefltioner has challenged the vaUdity of Section 21 of fhe Chahttisgarh Panehayat Raj Avain Gram Swaraj Adhiniyam, 1993. OripnaUy thiaAct was niadc by Madhya Pradcsh and afiter reorgaru2ation of thc State of CUhattisgarh it has been adopted by thls State. 2. The ground for chaUenge as contended by the leamed counsel for the petitioner 1s that the sald provlslon is vlolative of Article 14 of the ConstituUon of indla. In this connection, leamed counsel referred to para 5.18 of the petition, whereby it is hypothetically contended that the Sarpanch 1s elected directly whcrcas Panchas arc clcctcd froin thc Wards and thcsc Panchas, who have been plccted, do not have right to reracwe the Sarpanch, who has been elected from his own cdnstituency. '^ -7 ^' liilii;,:<( 1»:: ^li 3. Section 21 of the aforesaidAct is pertinent, which reads as iindGr: °21. No coiiGdcuceluotiou aKaiiist Saiuaiieh and Up-Sarpanch- (1) On a motion of no- coiifidence being passed by the Oram Panchayat by a resolution passed by majority of not less than three fourth of the panchas present and votlng and such inajority is more than tnro third ofthe total number of panchas constituting tfae gram panchayat for the tune being, the Sarpanch or Up-Sarpanch againstwhom such motion is passed, shatl cease to hold office forthwithi. (2) Notwlthstandtag contained ui this Act or the Rules made thereunder, a Sarpanch or an Up-Sarpanch shall not preside over a meeting inwhich a m.0tion ofno-confidence is discussed against him. Such meetmg sliall be coiiveiied iii suuh maiuier as may be prescribed and shaU be presided over by an ofBcer of fhe govemment as the prcscribcd authority may appoint. Thc Sarpanch or the IJp-Sarpanch, as the case raay be, shall have a right to speak at, or otherwise to take part in, (he proceeding of the meeting. (3) NQ confidenGe motion shaU not lie against the Sarpanch or Up-Sarpanch withui a period of- (i) one year fi-om the date on which the Sarpanch or Up Sarpanch enter thelr respective offlce; six months preceding the date on which the term of ofiice of the Sarpaach or Up Sarpanch, as the case may be, expires; one year from tfae date on which prevlous motion of no confidence was ^rcjcctcd." (u) m If'tl 4. There is no doubt and it is true that Sarpanch is elected dircctly by thc votcrs ofthc Gram Panchayat but thc provision of reiuoval by 110 coiilldeiice by Uieclected Paiiclias eaiuiol be sald to be arbitTarv or vlolative of Article 14 of the Constitutton of India. This question came up for consideration before the Division Bench of M.P. High Court In the case ofJaadish Prasad Bhuniwavs. State ofM.P. &ors., reported in 1997(11 MPLJ 512. It is held fhercin as iinder: 'There 1s no arbitrariness vlolative ofArtlcle 14 of the Constitution of India. Thls is within ttie domain ofthe State legislature to provide fhe method of the eleGtion of Sarpanch and their removal. Simply because aii uidu-ecl uictliod has beeu provided by fhe State legtslature, it cannot be said that it is violative ofArticle 14 of the Constitution.It is for thc Statc lcgislaturc to consider whether thB Sarpanch wTio is directly elected shoiild be rejnovcd by the elected panchas Le. by indirect method. It cannot be sald fhat thls method 1s bad or iUegaI as all the panchas are also elected by fhe gram satoha only and fhey are supposed to represent the wUl of the voters of the graia sabha" 5. The Apex Court in the case of Mohanlal rl'ripat!u_v&. District Mwdstrate. RaibareU. reoorted in AIR 1993 SC 2042. had an occasion to deal the smiUar question ta the eontext of Uttar Municipalitics Act and in fhat contcxt Thcu- Lordshlps held ffaat the power of rcmoval of Prcsident by votc of no \ ! : ' : i : confldence is vested in the Board. The President wfaether -^ ^- ' u t' elected directly by electors or indirectly by Board is iminaterial. Para 5 of thc said judgmcnt is rclcvant and quotcd bclow: "TIie Boai-d is tlius visuatlscd as a body entrusted with responsibUity, to keep a watch on the President whether elected by it or the electorate. Any arbitrary functioning by the President or disregard of provision of the Statute or acting contrary to titie uiterest of electorate could be known to the Board only. Therefore, it was not only proper but necessary to enipower the Board to take action, if necessary. In lact, the power of fhe Board to remove a President by vote of no confidence iinder Section 87-A and right ofthe President to recommend its supersession under Section 47- A(l)(a) are a check on each other's funcUoning. Comparison with the provlsions in Panchayat Raj Act whcre a Pradhan is reinovable by the gram sabha was odious as a gram sabha is a veiy siuall bcxly as coiupai'ed to Muiiicipality. The provision consequently cannot be held to be bad either because the Board is a smaller or dtffcrcnt body. Nor it can bc charactcrizcd as irrational or arbit.rary. Tt woi]]d be iinrRalistic to say so. Any chaUenge founded on violation of deinocratic norms thus cannot be accepted." 6. In the abovesaid view of the matter, so t'ar as validity ot' the provisions of the aforesaid Act is concemed, in our opinion, it is intra vires and not ultra vires. 7. The next question raised by the leamed counsel for fhe petitioner, is that the graia panchayat originaUy constituted of 17 incinbcrs; onc incrabcr had rcsigncd and at thc timc whcn the no conQdencc motion was movcd and came up for consideration on 19/2/2003 there were 16 members only. It is ® !iBnt::S!»S« contended that for the purposes of passing the no confidence niotion thc mciubcrship of 17 Dicinbcrs should havc bccn takcn iiilo coiisideralioii uislead of 16 uiembers. 8. This contention has no force in view of the language used. Thc lcgislatiu-e has takcn carc uuidcr sub-scction (1) of Scction 21 of the Act, whereta ttils condltlon is imposed. The words used are "total niimber ot' panchas constituting the gram panchayat for the time beine". A Division Bench of the High Court of Madhya Pradesh in fhe case of Patidar vs. State of M.P. fls Ors. reported in 1975 MPLJ 116, while uoiisldeniig Seclioii 21 of tlie M.P. Paiicliayals AcL, 1962 lias held as under: "We woiild, however, add only t.his miich that the expression 'by a resolution passed by a majority of more than one half of the total number of panchas constituttng the Gram Panchayat for fhe time bemg........' occurring in sub-section (1) of Section 24 of the M.P. Panchayats Act, 1962 leaves no doubt that the actual number of panchas constituting fbe gram paachayat when the resolution 1s passed provides the basis for determining luajority." 9. The matter again came up for consideration in the case of Rameshwar Daval Maharaman vs. B.N. Tripathi and others, reportcd in 1978 MPLJ 318. In that casc, thcrc wcrc 21 panchas; 5 had rcsigned and thc nuraber was reduccd to 16 on the date of motion. The motion was passed by 10 members 6 t(7'J i^te'^-Si'-te^ l'»"a3S'ti votmg for and 6 against the motion of no confidence but the Prcaiding OfEiccr hcld that thc inotion was not passcd. WIiilc uileipretuig Seclioii 24 of tlie M.P. Paiicliayals Acl, 1962, it was held that actual niimber of panchas of gram panchayat has to be considered at the time ofpassing the resolution ofno confidence. 10. In the instant case, out of 17 niembers one having resigned there reinained 16 only. It is these 16 members were constituting gram panchayat for the tune beuig. Out of 16 ineinbers, 14 were present at fhe consideration of no coiiftdeiiue luolloii. TIus 14 iiuuiber of uieiubers preseiil is more than 3/4ta of the total panchas constltutmg gram panchayat Ont of 14 Tnsmbers, 11 voted in favoiir of no confidence and 3 against it. This 11 ntunber ofraenibers voted is 2/3rd of the total peinchas constituting gram panchayat. Therefore, both the requireinents iinder the provisions of Sectlon 21(1) of the aforesald Act, worth three fourth of the total number of panctias present and two third of the total number of panchas constitutuig the gram. panchayat voted for the time being, have been fulfilled. The Presiding OfElcer has wrongly hcld that fhc motion has not bccn validly paascd, whereas ffae Addl. CoUqctor in its order dated 17/6/2003 (Annexure-P/6) has dealt the matter in great detaU and has 7 ....•.^•^•^s^S^f ^.v:s.-y^i^^^^xy^ rightly held that no confidence motion was valldly passed, as fhcrc was fuUy compliancc of Scction 21 of thc aforcsaid Act. 11. In view ofwhat has been stated above, this petition fails and is dlsmissed wifh costs. Counsel fee as per scale, if certi&ed. Sd/- L.C. Bhadoo Judge Hande/- i.K •<^m •^ ^ \,