'.>••• <f. [ool SWGl.F'ns^i IN THE^HIGH COURT OF JUDICATURE, AT BILASPUR (C.G.t ^iffrit Petttion No. ^/^t /2006 PETITIONER : ^ Panchram S/o Sahas Rain Sahu (Sarpanch) aged about 64 years, ,(• 'iy . cultivator and resident of village '..•'•''^'••''~ ...••'" Semariya aUiance to Gram-Panchyat- ^. ">:.-"\-./ ^•••"^5fv>>^ .^^iQ-c^'' ^f^ <d:>" RESPONDENTS f A Bhinoda, Tahsil-Bilaigarh, Distt. (' RaipurfC.G.) VERSUS 1. The State Of Chhattisgarh through the Secretaiy department of Panchayat and Social Welfare D.K. Bhawan Raipur Distt. Raipur. ^ 2. The^Sollector Raipur District Raipur (C.G.) ^ ts^' f --3. Gram Panchayat Bhinoda. Through ^ The s^rpanch,in the Janpad Panchayat ~' and tahsil Bilaigarh Distt. Raipur ^;,,; „• (C.G.) ^f,.^ f-fvr' ••- ' ":, ^ 4. The Panchayat Sqngthak (S.N. Shukla ) Janpad Panchayat Bilaigarh Distt. Raipur 5. The Secretary Gram Panchayat Bhinoda Tahsil Bilaigarh Distt. Raipur .• • <C.G.) 6. Smt. Nisha bai Satnami Panch of Gram t^ ^ •'.*< Pah?:hayat Bhinoda » <. ^7. Samme Ram Sahu Panch of Gram Panchayat Bhinoda. ^ 8. JitRam Sahu S/o Ram Sahu Panch of Gram Panchayat Bhinoda Tahsil Bilaigarh Distt. Raipur (C.G.) , 9. The Naib Tahsildar Sub TahsU Bhatgaon (Anupam Shukla) tahsil Bilaigarh Distt. Raipur C.G. ^ 10. The Sub Divisional officer (Specified officer for the Panchayat Election) BUaigarh tahsil Bilaigarh Distt. Raipur. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA. FOR ISSUE OF CERCIORARY MANDAMUS. PHOHIBITION BTC. OR ANY APPOPRITE WRIT DIRECTION OR ORDER XI-HC-78 sn^rwf^iR; TOT3f7^T^lTR? 3^';^P?RW, ©Tfl^'lti,Rldiylj< .LM.P.^?;.3'.$ak.(p k^ ^ ^- +llH^fTsb*<|ch ••.•"..."^•.•(.^iy.v^pj- 200 Sli^i <<ath (liGli^sl<{!T) ^RTRKHfsg'sn^r °bl«?^<fl-fKiw1'¥fai<a<R|^K' ^sri^Tan^r 1^.6.2006 Shri J.R. Ver-ma, Advocate f^>r the petitioner. Shri N.K. Agarwal, Deputy A|dvocate Sensral for r-espondent No.l & 2. By this petition under Arti^le 226/227 of the Constitution of India the petitioner has questioned the (egality, propriety and correctness of the order dated 5.6.2006 passed by th^ Additional Collector, Baloda Bazar in the reference filed by the petitioner-| herein under Section 21 (4) of the C.6. Panchayat Raj Adhiniyam, 1993 (hereinafter shall be referred as 'the Adhiniyam, 1994') whereby the Aifditionai Collector rejected the reference made by the petitioner against ^ne order of Prescribed Authority dated 10.3.2006 holding that no confider)ce motion has been carried out agiainst the petitionerherein. Brief facts leadin9 to fi petitioner herein was ths e!ecte in9 of this writ petition are that the i Sarpanch of 6raw Panchayat Bhinoda, Bilaigarh, District Raipur. Howe'l'er, dissatisfied with the working of the petitioner herein, on 23.2.2006 the Up-Sarpanch and Panchas of Sram Panchayat Bhinoda gwe notice of no confidenee motion to the Pt'escribed Authority under Rule 3 (1) of th«|Chhattisgarh Panchayat (6ram Panchayat Ke Sarpanch Tatha Up-Sarpanch,p'anpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice President 9^ Virudh Avishwas Prastov) Niyam, 1994 (her-einafter shal! be refsrrad asfRutes of 1994'). Jhe Prescribed Authority after satisfyin9 himseif about tl^e admissibility of notice fixed the meeting for discussion on no confidence Imotion on 10.3.2006 ct 12.00 noon in the bui!din9 of Sovernment Primary School, Bhinoda. As is evident from the i~-1 XI-HC-78 l^ •^ww-ti, vnKvie, Kiwuy. +11+1WI Sh*1|c»l ^ 200 3ii^i Mach ('ylfl'1"^'5'') sii^r^irfq-iR; craTsn^rsftiIti WBWHf^TSn^T -z. »i<<[ci41-f*fii<iTffte^t'<R]t<;i< ^;3Tf^T3n^T fr-. order sheet, that as the Tehsiidtjrs were on strike, therefore, initially the Prescribed Authority appointed tl^ e Panchayat & Socia! Education Organizer, Bi!ai9arh to preside over the me^ting, however, !ater on, on 9.3.2006, just one day before the date of meef'ing Naib Tehsildar Shri S.N. Shukla was Gppointed as the Presidin9 Ctfficer to preside over the meetin9. Accordingly, meeting was convene{i on 10.3.2006 as per notice and notice to that effact was sent to the Por|chas and petitioner herein. In the said meeting all 12 members of the 6 petitioner herein participated an<| as per proceedin9S (Annexure P-2) the Presidin9 Officer held that the r^solution has been carried out. A9grieved by that the petitioner herein modp a reference under Section 21 (4) of the Adhiniyam, 1993 before the Addi1 by the Additional Collector vide in of Ruies of 1994 and similarly, 3 ^•amPanchayat including the Sarpandi i.e. iono! Coilector and the same wcs rejected pugned order. I have heard Shri Verma, i^arned counsel for the petitioner ond Shri Agarwal, beputy Advocate 6ener(^l for respondent No.l <& 2 on admission of petition. Shri Verma argued that th^ date of mesting fixed by the Prescribed Authority was beyond 15 days, wh(ch was contrary to sub-rule (3) of Rule 3 days prior intimation to the Collector & Panchayat Secretary, as required i^nder Rule4 of Rules of 1994, wasalso not giyen by the Prescribed Authorjty. He a!so argued that the perusal of proceedings of meetin9 (Annexur) i.e. Naib Tehsildar discloses thffi P-2) prepared by the Presiding Officer the Presiding Officer informed a!l the Panchas and the petitioner herei^i that who want to cast their votes in XI-HC-78 3n^T«lilfSRRi (TO7 311^1 *lli+ t~ <- 3^'?TCTRra',®;ffSlTI5,telray iTT(T?n-gOTW——""" «.«*'»^f*^ sn^r'raap('^3g^') q.iqferi^WRffifte'^feWR ;?.';'R^R3ti^T3f1^T [^W favoui ;,gRnw?fer3^ [ ^?. motion, they shoul<| indicate their intention by affixing the mark of (s^) on the batlot paper^ affixing the mark of ( >\^) on 1 conduct the presidin9 officer has and the persons iwho want to cast their votes in favour of the motion, th^y should also indicate their intention by |ie ballot paper, therefore, by the said misiead the Panchas and they were not able to cast their votes accordin9 |'o their will, os out of total Panchas, six Panchas were illiterate. On the other hand, Shri Agi^rwal supporting the order of Additional Collector argued that 15 days time js not mandatory and similarly, Rule 4 of Rules of 1994 is also not mandator)) and about third point roised by learned counsel for the petitioner he submjtted that the presiding officer appears to have committed mistake while i^ecording the proceedings, jin fact, the Panchas including the petitioner heifein were rightly informed and apprised obout the fact that how to indico'(e their intention re9ardin9 castin9 of votes in favour of motion andagains^ the motion, as per Rule 5. Havin9 heard learried counse)! for the parties, I have perused the record. As far as first point raised bj[ learned counsel for •ttie petitioner that date of nieeting fixed by the Preacr|bed Authority was beyond 15 days time is concerned, as per record, notice b^ the Panchas for no confidence motion was submittedon 23.2.2006 and mee(ting was fixed for 10.3.2006. Sub-rule (3) of Rule 3 of Rules of 1994 envisjiges that date of meeting Shall not be lore than fifteen days from the date of receipt of the said notice. 'herefore, the time ha$ to be coun-t|ed from the date of notice and if the XI-HC-78 Sl^RTWf^TW (raTSRT^igiIfRi 3SETHn3TRig-,-®TfNpj?,fcini^ *(THWli?n*ii<=r> .».»..«•.».*..•^';#',*1' 3)1^1 ysi*'(<i«l3<a<i»T); gsrrwdfersn^i' •^- wifg^TdiTOfifte^t^reW W^'K 'fsfnf^s^fV 3I1^T l ^P~B ^v TCT time is counted fromi the datfc of notice i.e. from 23,2.2006. then 10.3.2006 falls on theil6T" day,|as such the meeting was;fixed one day beyond 15 days. Now the questi^ similar question came up for con 'n for consideration of this Court is that whether on account of that proc|eedings can be held to be jinvalidated. A ideration before the Full !Bench of fA.P. 1-ligh Court in the matlier of Bhi|ilin Oewangan Vs. Statejof M.P. and others reported in 2000 (2) JLJ|253 and in Para-15 of theyudgment the Courf- held that *the requiremenf^ or conditions, alfhough mandatory, may be waived by the {Mrty.if no publjc interest is involved wdin such a case the act done will be valid even if ^he requiremen'ts or conditions hwe not been performecf. The Court- furtfier held that " it would stfll be open to the Co!!ector or this Court fo find out whether in a given case non- complianceof any part of fhe rul^ has in fact resulfed in miy failure of justice or has cmsed any serious ^rejudice to any of the parfies and the Court under Article 227 of the Osmstitution has also a discretion nat to interfere even though e miwidat^iy requirement of law has nof been strictty complied mth osthereby ri^ seriw.is prejudice or faiKire of justice has been caused'. In the given c<jse notices were issued, ttie petitioner herein along with other Panchas pcjrticipated in the meetin9,; ort- the time of meeting nosuch objection was r4i5edand inthis petition ettenthepoint regarding non-compliance of sub-ru|e (3) of Rule 3 has been rflised,but it has not been mentioned that on ac4ount of one day delay in convening the meeting the petitioner's right has b^en seriously prejudiced and if so,how XI-HC-78 3^? "41'41d?, ®Tflu'ls,Rl<'ll«y *11*1rtl Sh*lich W1[ 200 W^\ 4sl* ('icild'!"iff) 3fI^TqirR-fi* crar 3n^?T stitiicb ^(ireKBf?cr3f1^T «bwf<-f41-i*iii<iTfftecfl'<f»it<i< ^isri^iTsn^T the same \s prejudiced. From pe|" that the petitioner and other their points and thereafter o( looking to the facts of the case not raised any ground in the p< prejudiced on account of one dd^ the opinion that on the ground beyond 15 days the whole proc< behind the ftules, 1994, is thcrt) should continue on the said post representatives i.e. Panchas and of the Panchas, therefore, the\| said post by 2/3 mayority of t^e As far as second grour petitioner that there is violati requires that the prescribed au1 of the Sovernment to preside o^ shall not below the ronk of Nail firarn Panchayat and the Collecto) before the date fixed for meeti^ig when the notice came for consid^i the Tehsildars were on striW Authority appointed the Panchay^rt' •usal of the minutes of meeting it appears >anchas were giyen opportunity to raise ily motion wos carried out. Therefore, and also the fact that the petitioner has stition that h\s cause has been seriously delay in convening the meeting, I am of that the meeting was convened one day ^edings connot be invalidated. The spirit a Sarpanch vuho is elected by villagers so long he enjoys the confidence of public since the petitioner lost the confidence have resolved to remove him from the Panchas present at the meeting. d raised by learned counsel for the t>n of Rule 4 of Rules of 1994, which fliority, after appointment of the officer \er the meeting of 6ram Panchaycct, who Tehsildar, to inform the Secretary of i)' about such appointment at least 3 days As has been mentioned earlier that l^ration before the Prescribed Authority ;^, therefore, initially the Prescribed & Social Organizer to preside over the XI-HC-78 3^ "'ll'yifl'il, ®Tflu'is,Ri<iwy *11*1MI Sfi^Trai ^ 200 3<i^i y^* ('icild'i";ler) sn^rqirfN^ traT3TI^?Tsb1 ?Tmwnfer3fi^T -6, *i'iiFd'Ifl-i t<itidTffts'<3 <Ri^i< ^iSlf^ITan^T appointtnent ohd meeting, however, later on, on 9 notice that a person not below t| the meeting on 10.3.2006, on 9| was appointed as Presiding Off circumstances, when the pre^i 9.3.2006 itself, it was not po^ CollectorS days prior to the dtrt^ the intimation regarding to the Secretary of 6ram Panchj who iooks after the activitiesl arrangements for the meeting of the district an intimation red< apprrpriate. Again the question to be the fact mentioned above that prior to the dote of meeting, invalidated. As has been observ< 3, again the question will cro||> intimotion to the Secretary & th^ caused to the petitioner. In th|e hasbeen raised in the petition, on account of non-intimation pr regarding the meeting or 3.2006 when this fact was brou9ht to his le rank of Naib Tehsildar can preside over 3.2006 Shri S.N. Shukla, Naib Tehsildar cer to preside over the meeting. In the iding officer was tegally appointed on isible to inform the Secretary and the of meeting. Perusal of Rule 4 shows that of presiding officer has to be given iyat because the Secretary is the officer of Panchayat and who has to mate all similarly, the Collector being the head |ardingsuch meeting has been considered lconsidered as to whether on account of ^•he intimation could not be 9iven 3 days ho confidence motion can be held to be \d above in respect of sub-rule (3) of Rule o^-up thot whether on account of non- i^ Collector any serious prejudice has been h^ first instance, there is no such ground n|oreover, nothing has come on record that ^or to 3 days any confusion was created arrangements could not be made, proper XI-HC-78 3?? •<<1<IIM<<, ®Tflu'IS,I°ICII<fy *11*1CTI SttHlth ^ 200 3ii^«'4a<n ('(?<tg'i««CT) Sn^T^iTR-li'sb (T8IT3TI^?rsh>f 1 ??(TTW;Hfer3)T^r —'7- reasons icfc therefore, for the above invalidated, as no serious prejudic account of non-compiiance of Rule Now coming to third argum< petitioner thot the requirement o'l is that "the Presiding Officer meeting one by one a»dshall give indicate its authenticity, to cast member who wants to vote in o-f (v) and the member who want^ the symbol of'X'. After the ballot paper to maintain the fable of the Presiding Officei\ Perusal of Page Nos.4 &5o\ of the Poper Book shows that in for the purpose of casting of vote by him to Panchas & Sarpanch anc| cast their votes in favour of motl and again it has been written fhcr^ favour of motion, they should af^ been written thatafter casting taken out and it was found thatot whereas, on 3 ballot papers ther^ the meniber has recorded his secr^cy »i<iFfi<fl-<*ii*t(iTfftetit'<l'»i«;it ^sri^Tsn^T i, meeting connot be held to be lic^ has been caused to the petitioner on ; 14 of Rules of 1994. (nt advanced by learned counsel for the sub-rule (5) of Rule 5 of Rules of 1994 s^all call the members presenf in fhe ^iem ballot papers duly signed by him to l^is vofe for or against the matiwi. The fav6pr of fhe motion shall affix the symbol •^ fo vote against the motion shall offix 'nenifeer has recorded his vote, he shall fold and put it in the ballot box kept on the proceedings and Page Nos.33 & 34 t|ie proceedings it has been written thot he handed over the ballot papers signed informed them that those who want to |on, they should affix the mark of ^) those who want to cast their votes in ix the mark of 'X'. Thereafter, it has |of total votes the ballot papers were 9 ballot papers there is mark of (s^), was mark of 'X', as such,9 votes were XI-HC-78 3^ '<||<(1^, ®Tn«'is,(qcii'My iTmw awra?""""""""""" ^ 200 3(1^14sl* ('i'lt^^y') gn^igiiR-fi'* (raT3TI^Ti»iKi<ti waiwflfiasn^r -•?- <*l<l(cl'in-< 41*<dTffts-<fl <Ritei< ^sri^Hsn^T cast in favour of the motion dnd as there are 12 members of the Panchayat and 2/3 members h<4/e cast their votes in favour of motion, therefore, the inotion is declared Now the question comes as carried out. whether, in fact the Panchas were informed that those who want -t)o cast their votes in favour of motion shoutd affix the mark of (•>^") and| also those who want to cast their votes in favour of the motion should ii mark of 'X' or infact the Pcnchas caste their votes in favour of th^ ('^ftn the ballot paper and those motion, they should affix marktn fhe ballot paper as 'X' . From the reading of whole record of proceedings, apprised the Panchas thot those i^ho want to cast their votes in fwour of motion should mark (v^) and those motion should mark 'X' and reason; 1. Had the presidir^ officer (•) and 'X' in case they motion, then at very ni raised the objection tk| adopted and pr'oceedin^ objection when the Nait^ idicate their intention by affixing the were informed that those who wants to motion, they should affix the mwk of who want to cast their yotes against the ihow that in fact the presiding officer who want to cast their yotes against the i for arriving atthis conclusion are that; informed the Panchos to mark both want to cast their votes in favour of oment the Ponchas ought to haye at how such a procedure can be is show that there was no such Tehsildar informed the petitioner and other Panchas regari^ng manner of castin9 of their votes. XI-HC-78 T5? "ilHld^, ®xflwi6,^CtlUy tTTRtfT arHI<»> ^ 200 311^14s|cb (yts't'i.y) OT^TSIiTf^IW traT3n^?T»li<:n BtaiWBfersii^T 'hl1?i-l<fl-l llldT^Ts'^fl <Rltei< ^sri^ranSRT 2. The petitioner part'icipcrt'4d mark and he had not rai; raised by the petitioner 3. Moreover, when the ba| papers there was markinfe marked with 'X' and on con-fusing and the ballo'l manner that those who favour of motion and considered against the the spirit of sub-rule (5] hos not been able to raised in the petition informed the Panchas their votes in favour intention by markin9 (^ votes in favour of mo-1 intention by fflorkin9 'X'. So for all reasons, mistake has been crept-in respect of marking 'X', inad(?e Pakdi " has been written. leorned counsel for the peti^ in the meetin9, he himself affixed i^ed any objection regardin9 the point herein. |lot papers were taken on 9 baliot of (>^) and two ballot papers were (he 3 one the markin9 wos little bit papers were segre9ated in such a |iad marked (.^) were considered in Ithose who have marked 'X' were ihotion and that has been done with of Rule 5,therefore,the petitioner e^t'ablish the ground, which has been \hai in fact the Presiding Officer him that those who want to cast motion, they shail indicate their N^ and those who want to cast their 1-ion, they shall also indicate their did ^ ohd slip pen while writing proceedings the instead of writing the word 'Vipaksh'm inad(fertently with the slip of pen the word " \Therefore, the arguments advanced by t-ioner, in the fir-st instance, appears to be Xl-HC-78 SII^T^Tls-fif tisiTsn^TstiHw Roshan/- J.^ y^ .^/.^ ,/f ^£ S^^IPII^PT, »Tl1«'IS,PlCIKiy *II«<CTI a>*ii<sh ^[ 200 311^1 Md* (l<:«tgisi<<ff) g^draTHfer sn^?T Vo- attractive and plausible, but to be without merit and basil Therefore, all the not sufficient, justified and| of the Prescribed Authoritli carried out and also the ord< the reference. In the result, I do ni] requires interference by Constitution of India in th< dismissed and it is accordin9|y Consequently, M.( also stand disposed of. ti|iree points rdsed by the petitioner are reasonable for setting aside the finding whereby he held that the motion was ort^er of Additional Collector, who rejected |>t find any ground in this petition, which 1-his Court under Article 227 of the order impugned, same is liable to be dismissed. .(Wj)P. No.3432/06 & I.A. No.6264/06 +i'iit<-i<)1-< Ni*<dTffFs'<!l <Ritei^ ^aif^Hsn^r when it put to scrutiny the same is found Sd/- L.C.Bhadoo Judge