^sf3 Ar-<f1Bi!> f^^% \9-^' HIOH COUKT OF CHHATHSGARH AT BILASPUR WRIT PETITION (Cl HO. 7460 OF 2007 PETITIONBR Elfyas Toppo, aged about 37 years, son of Shri Johan Toppo, resident of Gram Judawain, Post Behraldiar, Tati. Kunkuri, Distt. Jashpur (C.G.) VBRSXIS Vseaest:- Mr. R. Jhawifh Mr. A.M. Tiwari, counsel for the petitioner. Mr. Arun Sao, G.A. for fhe State/respondents No. 1 to 5. Mr. Bhaskar Pyasi, couascl for respondent No. 6. Dhirendra Mishra, J ORDER (13*h March 2008) By fhis pctition uader Article 226/227 of the Constitutfon of India, fhc petitioiier has questioncd tfae le^dily, propriety and validily of fhe ordcr dated 5.12.2007 (Annexure P/4) passed by Additfonal CoUector, Jashpur in Revenue Case No. 09/A-89/2007-2008 whereby the leamed Additional CoBector aUowed the refereacc preferred by respondent No. 6 under Section 21(4) ofthe Chliattisgarh Panchayat Raj Adhinwam, 1993 (in short 'fhe Act, 1993') axul se^aside the ordcr RESPOMDENT8 1. State of CIihatrisgarh, throz^h fhe Secretary, Departnient of Paachayat aud Social Wetfare, Dau Kalyan Siagh Bhawan - Raipur (C.Q.) ,,..; Siy' ^" ••• •" ^•.- •2.. CoDectof, Distfc Jashpur (CG) 3. Uppcr CoUector, Distt. Jashpur (CO) 4. Sub Divisioiial Offiicer (Rev.), Kunkuri, Distt. Jashpur (CG) :5. Additional Tahsildar (Presidmg Officer), Tah. Kunkuri, Distt. Jashpur (CG) 6. Kainal Knmar Knjur, son of Pilinon Kujur, aged about 35 years, resident of Vfltoge aud Post Behialdiar, Tah. Kuakuri, District Jashpur (CG) ^^ '^ •'iaaB 2- dated 28.6.2007 (Anaexure P/l) passed by Sub Divisioiial Officer, Kunlcuri. The respoiideat No. 6 was Sarpaach of Gram Panchayat, Bahrakhar. Thc meinbers of the said Paachavat subnutted a ineino under Section 21 oflfafiAct 1993 read with sub-mte (3) of Rufe 3 of C.G. Paacbayat (Gram. Panchayat Ke Sarpanch Tatha Up-Sarpanch, Jaapad Paachayat Tafha Zfla Panchayat Kc President Tafha Vice- President Ke Virudh Avishwas Praslav) Nwam, 1994 (for brevity tbe Rutes 1994^ to thc Sub Divisunal OfiBcer/Prescribed Officer on 14.6.2007 regaidiag their 'No Coix&dencc Motioa' a^iast the respondent No. 6, ie. the Sarpaach. Tbe Sub Divisional OfiSccr after getting lumself satisficd vide Memo dated 15.6.2007 appointed Presidu^ OflEfcer for coiiducting a meetu^ to consider thc 'No Confidence Motion' against fhe respondent No. 6 on 27.6.2007 and fhe tiine was fixed at 12.00 noon. Thc notices were issued &r semce fhiough Chief Executive OfBcer, Janpad Panchayat-Kunkuri on 15.6.2007. The Chief Executwe OflBccr vide his Meino datcd 23.6.2007 issucd written iastructions for service of notices on all the officer bearers ofthc concemed Pamcbayat Thereafter, a nieetit^ was conveued on 27.6.2007 and in the said meeting out ofthc 12 Paiichas present, 9 voted ia feivour of tbe resolution saad 3 against the resolution. The above resolution was dufy forwardcd by the Presidiiig OfBcer to the Sub Divisional Officcr, who by oider of Annexuic P/1 declaicd fhat siace 'No Cou&dence Motton' against Sarpaach Kaaaal Kuaiar Kujur has becn duly passed, he ceases to be Sarpanch of Gram. Pancitayat, Bchrakhar atid conscquenffy, dcclared fhe post of Saroaach, Oram Paaciiavat, Behrakfaar vacant The appUcation zmder Section 21(4) of the Act, 1993 of the respoxident No. 6 was considcred by fhe Addteional CoUector and the same was aUawed wifh an observatton fhat fhough 9 out of 12 Panchas present have voted in favozu- of 'No Coiifidcace Motion, which is uot less fhau three fourth of total panel of Panchas and more than two third of ttie total nujabcr of Panchas aad the resohition stands carried out, however, since fhere js no docunientaty evidence ayaiiabte on recoid that fhe notices issued to the ofifice bearers of tfae coiicemed '•<<>. ~vy^y '^ssagsi^ ff 3 Panchayat were scnred before scven clear davs as i»ecessarv iiader sub-rule (3) of Rute 3 of fhe Rutes, 1994 and as the notice was, in fact, served upon fhe Sarpanch <aity on 25.6.2007, therefore, coinpliance of sub-rulc (3) of Riile 3 of Rulcs, 1994. has not becn dotie and ia fhesc circuinstaaces, the proceediags drawn by fhe RresidiB^ OfGce dvma^ the incetiag to constdcr fhe 'No Confidence ^totion' caanot be heU to be legal. Accoitiingty, the proceedings drawn were held fllegal, VOKI and incffcctivc and tfae order dated 28.6.2007 (Annexuie P/l) of the Sub Divisional Officer, Kunkuri was set aside. Learacd coiinsel for fhe petitfoner subinits that thc teamcd Additional CoUector has erred in rcaclung the conclusion that tfae uotices were not served upon fhe oflSce bearers of the concemed Paachayat bcfore 7 ctear days, fherefoie, the meetmg convened for consideratwa of 'No Confidence Motion' was in vtolatian ofsub-rule (3) of Rule 3 of fhc Rutes, 1994. Sub-rute (3) of Rute 3 oiify cast a duty upon the prescribcd authority that he afier gcttiug hiinself satisfied about fhe admissibiUty of tfae noticc, shaB fix the date, timc and place for the ineetiag of Oiam Panchanrat, wluch shall not be xnoac than fifleen days fix>iu tfae date of receipt of the said notfce aad thereafter, notice of sucli meeting specifyiag the date, time and place thcreof shall be caused to be dispatehed by him thiough thc Secretaiy offhe Oram Pauchayat or Ctuef Executivc Officer of fhe Jaapad Panchayat or Zfla Panchavat, as tfae case may be, to evetv naeniber of fhe Paachayat conceraed sevcn days before fhe meeting. In the iastant case, since fhe notfces were caused to be dispatehed on 15.6.2007 for the meeting which was to be held on 27.6.2007 i.e. brfore seven clear days, tIuTefore, there K no violation of siib-rule (3) of Rule 3 of the Kutes, 1994. Oa thc ofher hand, learaed couasel for fhe tcspondeat No.6 argued fhat apart fi?oin fhe above irregularities, there js aaother irregularity conunitted by thc Presiding Offfcer as he did not allow the respondent No. 6 to oppose fhe 'No Coiifidence Motion', which is also the requirement as per Section 21(2) of Act, 1993 aad Rute 5 of fhc Riiles, 1994. / I have heard learaed coiuisel for the partfes. .^.."^. "ra^. "X .-.-R"?^^-.. iS ?:'S'.^ses^-'. V :'-.-w^;i^;^. i- So fas as the order ofleamcd Addittonal CoBector in allowine fhe reference undcr Scction 21(4) offhe Act, 1993 is concemed, fhe onfy ground on wtiich tfae ordcr of S.D.O. is set aaidc is fhat there is aon- coiapUance ofsub-rule (3) ofRule 3 ofthc Rules, 1994. Howcver, fix>in thc admitted position it is ckar that fhe notk-es were, in fact, despatehed by thc Presiding OfGcer before seven clear days and it is not fhe requireinent of law that fhe notices issued should be dufy served upon thc inembcrs of the concemed Panchayat befoie scven clear days and fhercfore, fhc finding ofthe leamed Additional CoUcctor in fhis regard is contraiy to fhe provisions af sub-rute (3) of Rute 3 of fhe Rutes, 1994. So far as fhe other arguinent advanced by learDjed connsel for the respondent No. 6 fhat the Sarpanch -was not adfonlcd aa opportemity to defend hiinself in fhe ineeting, is conceraed, fihe abovc objcction does not find mention ui the napi^ncd order and flxan perusal thercof, it is clear that it was never agitated befba?e tfae Additional CoUector and fherefoic, the respondent No. 6 caanot bc aUowed to agitate fhis objection for fhe first time before this Court. lu the resutt, fhe iastaat pedtk»n is aBowed. Order dated 5.12.2007 (Annexure P/4) passed by Additioiial CoUcctor, Jashpur is set aaide and the order dated 28.6.2007 (Aiinesmic P/1) of the Sub Divisional OflBcer, Kunkuri is restored. Sd/- 4-1