IN 1HE HISH .COURTOF GHHATTISSARH AT BI&ASPtJR ytBSS BET3:TlONJiO.___12^j/2po4_ TET3:T3DNER Jitendra Giri Goswami, Son of Shri Kalyan Giri Goswami, a^ed about 30 years, reslden't of vtllage 8 Khedl.gaon, - Sarpach Khedigaon, Block i Pifchoura, Tahsil & Distriet : Mahasamund ^B;.R.,,S. BESS08QSNaS ^s°^?A .^y .^y <^/'" JS 3. 4. 5. 6. 7. 9. ( C'G ). Sfcate of Chhattisgarh . through the Secretary, Panchayafc & Seeial Welfare Department, D.K.S. Bhawan, Raipur. 1 Tba Golleetor, Mahasamund, i Dis-tt : Hahasamund (CS). The Sub Divisional Officer, ( Prescribed Authority ) Mahasamund,' Distt : Mahasamund — C'G. v^/ , The Aflditlonal Ta^ldar i ( Presidiag Offieer ), Pithaura, Tahs.il & Distt s Mahasamund ( C-S ). Mohanlal, Son of Baisa- khu, aged ahaut 35 years, residentof village : I Cheigcbeda, Distt : Maha- 1 samund ( C'G ) . Siyaram, Son of Chintaram" [^ agea about 5o years, resident of village s Khedigaon, Tahsil & Oi.stfc: Mahasamund .( C'G ). Iiabhchand, Son of ua- known, aged about S 40 years, resiaentof v.L-Il s Chswkbeda, Distt s Maha- samuad (C'S ) . 8. Pardeshi, Son of unkfaown, ffl afled aboufc resident bfl 38 years, village Kl-eaiigaon, ,|Pahsi.l & .iM.stfc,. [ Hahasamund |( G-'G ) • ; J! Pandurang, 1 ;Son1 of.Bev- -:ij| Slngh, age^'afcieiufe 30 |yeaE|ij; Eesident o£. vill ;s Kfie<a3.-M N ^ ^ :8 2 :8 gaon, Tahsil & Distt : Mahasamund lo. Baliram, Son of unkhpwn, aged about7o yeary, resxdeirfe pf vill ; Chswkbeda, Distfc s Mahasamund 11. Ram Singh, Son of Kashi ram, aged about 35 years,*-resident of village : Khedigwn," Tghsil & Distt' 2 Mahasamund ( C'G ). 12, Smt. Ratnibai, Wife pf Minram, aged aboyt 4o years, residenfc of village 8 Khedigaon, Tahsil & Distt Mahasamund ( c'G )^ 13. Smfc. Hatobai, Wife of Anjordas, aged about 3o years, resident of vill : Khedigaon» Tahsil& Distt : Mahasamund ( C•G ). 14. Smt.Pilibai, Wife of Pilsingh, aged about 38 years, resident of village ; Khsdigaon, Tahsil & B.i.stt s Mahasamund ( C'S ). 15. itma'tfcabai, Wife of Makhiyar, aged about 38 years, residenl: of village : Khedigaon, Tahsil & District : Mahasamund ( C'G ). S£.L22;EE^~22SE£- S2j2s—^26^HL2F.-^E-22S22£222S eB'-INBlM BETAILS OF, THE EETITIQH 1. paafc.Loylars of the Set±tioner,.: As mentioned above in tbe eause title, 2. Partieulars of the Respondents;,-: As mentioned above ia the eause title, HI6H COURT OF JUDICATURE AT BILASPTO fCHHATnSSARHy Writ Petition No. 129 of 2004 Jitendra (5in Sosmaini Versus Stcts of Chhattisgorh and bthers POSTFORORDER ON2J^_ JANUARy. 2004 Sd/- LC.Bhadoo " Judge N ;, . wm HI6H COURT OF JUDICATURE AT BILASPUR aHHATTISSARH) WritPetition No.129 of 2004 Jitendra ©iri©oswami Versus State of Chhattisgarh cmd others Present; - Mr. V.K. Pandey, Advocate; Mr. Akhit Agrawal, Panel Lawyer: For the petitioner For theState/respondents 1 to Before: Hon'bte Shri Justice L.C. Bhadoo OR DER (Passed on 2-'?^>Jmuary.2004) 1. Heard both the counsel on adriiission. 2. By this writ peTition under Article 226/227 of the ConstituTion of India, the petitioner has questioned the legality and propriety of the order dated 29.12.2003 pas^dby the Collector, Mahasamund, in Revenue Case No.26-A/89 Year 2002-2003, whereby the learned District Coltector rejected the dispute of the petitionerpreferred by him under Section 21 (4)of the Ghhattisgarh Panchayat Rdj Adhiniyam (for short 'the Adhiniyam'). 3. Brief facts leading to filing of this writ petition are -that the petitioner was elected as Sarpanch of Villege Panchayat Khedigaon iduring the Panchayat leleetions. Few of the members of the Panchoyat i.e. respondents 5 Td 15 submitted notjce before the prescribecl authority i.e. Sub bivisional Officer, Atohasamund, in a prescribedl fopm for -bringing no confidence motion against the petitioner. On receiving the notice, the prescribed authority after satisfying himself about 1he admissibility df the notice with rsference to Sections 21 (3), 28 (3) <& 35 (3) of the Adhiniyam, issued notice (Annexure P-2) to the members of the Panchayat on 07.08.2003 fixing the ddte for meeting of the ©ram Panchoyct for discussion on the no confidence mofibn as 25.08.2003 at 12 Noon in the Gram Ponchayat Bhawan, Khedigaon, and K.R. Bhagot, Adelitional Tehsildar, Pithoura, was appointed to preside over the no confidence motion meeting ond all the memberswere accordingly, informed. The meeting of The Panchayat took place on the given date, time and pkiceand the no confidence motion wascarrisd out. 4. It has further been mentioned in this petition that as per sub-rule(3) of Rule 3 of the Panchoyat (6ram Panchayat Ke Sarpanch Tatha Up- Sarponch, Janpad Panehayat Tatha Zila Panchoyat Ke President Tatha Vice President Ke Viruddh Avishuns Pmstav) Niyam, 1994, (for short *the Rules') the prescribed authority cannot fix the meeting for discussion on no confidence motion beyond fifteen dcys fromthe date of receipt of the notice. But the prescribed outhority had not considered this aspect, which is d mcndatory p.rovision and heid the meeting of no confidence motion dgajnst the petitioner. As the said motion was carried out against The mflnia'atory provisions of the Rules, therefore, the petitioner raised the dispute challenging the yalidity of theno confidence motion before the Collectorunder sub-section (4) of Section 21 of the Adhiniyam. However, the learned Collector dismis^d the dispute of the petitioner. 5. The main grievance of the petitioner is that aS per sub-rule (3) of Rule 3 of the Rules, the prescribed ttuthprity was not ouihomsd to fix the date beyondl fif-teen ctays from The dorte of receipt of the said ndtice. Leamed courisel for the petitioner argued that as notices were issued , on 07.08.2003 and the date for no cohficlence motion wasl fixed on 1' .' 25.08.2003,1 •riierefore, it was beyond fifteen days, as such, the •M'iVV -J ^CW^i£1 IIBII mandatory provisions had not been complied with and only onaccount of that the no confidence motion deserves to be invoilidated and declared illegat. Leamed counsel for the petitioner relied upon the decision of the Sin9le Bench 6f M.P.High Court in the mattsr of yijay Jamre vs. State of tt.P. andothers reported in 2002 (1) Vidhi Bhasvar 310. 6. On the other hand, learned counsel for the State/respondents^l to 4 argued That since The peTitioner has not been able to establish That on account of fixing of the date beyond fifteen dcys, a serious prejudice has been caused to the petitioner, therefore, the petitioner is not entitied for the relief cfaimed for. In support' of his argument.tearned counsel for the State relied upon the decision of •fhe Futl Bench of M.P. High Court in the case of Smt. Bhulin Dewangan vs. State of M.P. and others reported in 2000 (4) M.P.H.T. 69 (FB). 7. It is true that sub-rule (3) of Rule 3 of the Rules mandates that tiie prescribed outhority shallsatisfy himself about the admissibility of notice ond shal) fix the date, time and plnce for the meeting wj+hil'i 15 days from the date of receipt of notice, as laid downin the first part of sub-rule (3) of Rule 3 of •ths Rules, notice is to be dispatched of such meeting to every memberof the Panchayat seven days before the meeting. 8. In the present case, the notices were dispatched on 07.08.2003 fixing the meeting on 25.QB.2003. Themfore, admittediy, the meeting wos fixed beyond a period of 15 days from the date of receipt of the notice, which wos contrary to the firstpart of sub-rule (3)of!Rule3 of the Rules. ; Now, it is to be seen whether non-compliance cf the mandatory provisions, ipso facto. invaljdates the proceedings bf theno confidence. |In this conneetion, in -riie case of Smt. Bhulin &ewangan (sigw). the Rj!l Bench of the M.P. 1-ligh Cburt- held thaf J "The geherql rule is that non-compliance of mdndortory requirement results in nullificdtion of the Act. There are, howeyer, several exceptions to ttie same. Ff certain requirements or conditions are proyided by statue in the interest of a particukir person, the recjuirsments or coinditions, atthough mandcrtory, may^^ no public interestflre involved ca'id in such a case •theOct done will be valid even if -the requjpernents or conditions have not been performed." In Thjs case the view taken by The M.P. Migh Court in the case of Dhumadhandin vs. Stat®of tt.P. reported in 1997 (1) yidhi Bhasvar 49 which was followed in the case of Mahavir Saket vs. Coltector. Rewa reported in 1998 Cl) J L.J. 113 for holdirig that mere non- compikince of first part' of the rule in fixjng a meeting beyond the prescribed days of •the motion of nd-confidence would not invalidate the whole proceedings has been approved, The Fult Bench hcs fur-ther observed that "Sub-section (4)of Section Sl-permits reference of a dispute 10 the Cbllector by Sarpanch or Up-Sdrpanch againstwhomanoticeofnoconfidencemotionhadbeen passed. The pro<»edihgsof the hp-confidenw motion or other proceeclings under the iAci ape «lso ossaibble in this Cburt as Constitutional Cotlt't under Article 227 of the Constitution of India. Yet in every case ofchaliehge to the prpceecling of no-confidence motion either before the Cottector or this Cdurt^it would still be open to the Collector or thisCourt to finAout whether in agiven ccse non-complionce of dny part' of the rule has in ^fact resulted in any failure of justioe or has cauged any serious prejudice to smy of the parties. THe general rute is thcrt n fflanckrtvry provision of^ kiw r^ complkince dnd the directory one only ajbstdnfiai, But even where tne provisioh js rnaridatpry, every non- complkOTce of the same need not necsssdrily^^^^^re^ nullificntion of thewhofeo^on. ^ for 1 non-fulfilir^nt of mo^ outhority empouai^ to;.take:^jdec^n nwy^^^^^ nullify|thet2ction6n^ pr^di^ had been caus^;to;tlie pai^ any other pai^ wM|ch iw^ul3 ihav®an^ subs'lai^tial intere^ in 1he pro<:^<Jingy|^isi€oyi^iunder^i^ste^^ »•"r., ..»- 'S^iisfS'^^'WSg^^. iSiiirnki of the Cons'titution has also a discretion not to interfere ewn though a mandatory requirement of law has not been strict'ly cofflplied with as'therebyno serious prejudice or failure of justice hns been cnused." 9. I have perused the petitjon of the petitioner. It has'no where been mentioned in the petition Ihat on account of non-comptiance of The mendatory provisions of first part- of sub-rute (3) of ftjle 3 of •the Rutes, cny serious prejudice has been caused to the petitioner. In the judgment cited by 1+ie counsel for Ihe petitioner, -the above aspect of the law which has been kxid down by •1+ie Full Bench of -the M.P. l-(i9h Court- hos not been considered. Therefpre, m view of •the above, even •thou9h, •the nwndatory requirement of sub-rufe (3) of Rute 3 of the Rutes has not been complied with, but since l+ie petitioner has not been abfe to plead and establish that on accountof non-fulfitlment oflhe mandatory requirement a serious pnejudice has been coused to him and •there is •(xulure of jusrtice, this Court- is not inclined to exercise the discretionary power m fuwur of -rtie petitioner to invatidate or nullify •that no confktence motton passed by the Panchayat against ihe petitioner in view of •tfie faw faid down by the Full Bench 6f AtP. High Court'm •the case of Sint. Bhulin t)mfaansan (nyirw). 10.In the circumstances, the petition is Itabte to be dismissed at •the (Ktmission stnge itselfand •riiesaane is accordingly dismiissed. Sd/- L.C.6bado° ^ judge^