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Mahendra Singh Vs. the Collector, Gwalior and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Case No. 145 of 1970
Judge
Reported inAIR1971MP83; 1971MPLJ74
ActsMadhya Pradesh Panchayats Act, 1962 - Sections 2, 19(1), 19(2), 20, 21, 24 and 24(2); Madhya Pradesh Panchayats Rules - Rules 3 and 80; Madhya Pradesh Panchayats (Amendment) Rules, 1967
AppellantMahendra Singh
RespondentThe Collector, Gwalior and ors.
Appellant AdvocateS.K. Dube, Adv.
Respondent AdvocateSwami Saran, Adv.
DispositionPetition dismissed
Excerpt:
- - (2) if the gram panchayat fails to elect a sarpanch and an up-sarpanch in accordance with this section, the collector may by order, direct the gram panchayat to elect the sarpanch or the up-sarpanch within the period specified therein and on failure of the gram panchayat to do so, appoint any person eligible under sub-section (1) to fill the vacancy......petition under article 226 of the constitution for quashing the proceedings of the meeting of the gram panchayat, parsen, district gwalior, in which a resolution of no confidence was passed by the gram panchayat against the petitioner, the sarpanch of that panchayat. 2. the petitioner was elected sarpanch in the year 1964 under the m.p. panchayats act, 1962. in the new elections which were held in june and july 1970, he was again elected a panch and in the first meeting of the gram panchayat which was held on august 4, 1970, he was again elected sarpanch. 3. on august 21, 1970 a few panchas gave a notice to the secretary of the gram panchayat of their desire to move a motion of no-confidence against the petitioner. the secretary then convened a meeting of the gram panchayat for the.....
Judgment:

Shiv Dayal, J.

1. This is a petition under Article 226 of the Constitution for quashing the proceedings of the meeting of the Gram Panchayat, Parsen, District Gwalior, in which a resolution of no confidence was passed by the Gram Panchayat against the petitioner, the Sarpanch of that Panchayat.

2. The petitioner was elected Sarpanch in the year 1964 under the M.P. Panchayats Act, 1962. In the new elections which were held in June and July 1970, he was again elected a Panch and in the first meeting of the Gram Panchayat which was held on August 4, 1970, he was again elected Sarpanch.

3. On August 21, 1970 a few Panchas gave a notice to the Secretary of the Gram Panchayat of their desire to move a motion of no-confidence against the petitioner. The Secretary then convened a meeting of the Gram Panchayat for the purpose of Section 24 of the Act. On September 18, 1970, a meeting was held and the motion of no-confidence was passed by all the 11 members who were present and who voted.

4. It is contended by the petitioner that the Panchas who gave notice of their desire to move the motion of no-confidence were not competnt to give such a notice inasmuch as though they were elected in the new election of 1970, their election had not been notified within the meaning of Rule 80 of the Rules framed under Section 12 of the Act.

5. Section 11 of the Act provides for the constitution of the Gram Panchayat, which is to be composed of elected members and members co-opted or appointed under Sub-section (3), (5) or (7) of that section.

6. Section 12 of the Act enacts that the election and co-option of Panchas of a Gram Panchayat shall be in accordance with rules made under the Act. The rules were made and published by the Government under Notification No. 167-646-XVIII-R, dated July 29, 1963, in the M.P. Rajpatra (Part II) dated August 9, 1963, at page 593.

7. Section 18 of the Act runs thus:--

'The Panchas of a Gram Panchayat shall, save as otherwise provided in this Act, enter upon their offices with effect from the date of the first meeting of the Gram Panchayat fixed under Sub-section (2) of Section 19 and hold office for a term ' of five years :

Provided that the term of office of the outgoing Panch shall be deemed to extend to and expire on the day preceding the date of the first meeting of the succeeding Gram Panchayat under Sub-section (2) of Section 19:

Provided further that the State Government may, by notification, extend the term from time to time for a total period not exceeding one year in the aggregate.'

8. It is enacted in Section 19 (1) as follows:--

'19 (1) The prescribed authority shall, with the prior approval of the Collector as soon as may be after every general election, call a meeting of the elected members for the purpose of co-opting members as required by Section 11, if necessary, and all provisions contained in this Chapter shall, regarding meeting of the Gram Panchayat, as far as may be, apply in respect of the said meeting.'

This sub-section is followed by Sub-section (2) which reads thus:--

'(2) The first meeting shall be held within one month of the date on which the election, appointment or co-option, as the case may be, whichever was last declared.'

It is quite clear from Sub-section (2) that after the election and co-option of the Panchas, a meeting of the Gram Panchayat has to be held within one month of the date on which the co-option was declared.

9. It is then enacted in Section 21 thus:--

'21. (1) Every Gram Panchayat shall at its first meeting elect from amongst its members a Sarpanch and an Up-Sarpanch.

(2) If the Gram Panchayat fails to elect a Sarpanch and an Up-Sarpanch in accordance with this section, the Collector may by order, direct the Gram Panchayat to elect the Sarpanch or the Up-Sarpanch within the period specified therein and on failure of the Gram Panchayat to do so, appoint any person eligible under Sub-section (1) to fill the vacancy.

(3) The State Government may make rules for regulating the mode and time of election or appointment of the Sarpanch and the Up-Sarpanch.' Now it is quite clear from these provisions that the 'first meeting' within the meaning of Section 19 (1) is that meeting which is called 'of all the elected members' for the purpose of co-opting members as required by Section 11, but the 'first meeting' within the meaning of Sub-section (2) of Section 19 is that meeting of the Gram Panchayat which is held under Section 21 and it must be held within one month of the date on which the meeting under Section 19 (1) is held and members are co-opted.

10. Section 20 of the Act provides for notification in these terms:--

'Every election, appointment and co-option of a Panch, Sarpanch and Up-Sarpanch shall be notified by the Collector in the prescribed manner.'

Section 19 (2) employs the word 'declared' while Section 20 'notified'. Reading the two provisions side by side and in contrast to each other, it is abundantly clear that 'declaration' of the result of election is different from 'notification' of an election. Section 20 which provides for notification of an election, although lays down that the notification must be in the prescribed manner, but it does not provide for the time when the notification is to be made. It may be made immediately or later on. The manner prescribed for the notification is provided in Rule 80 of the Rules framed under Section 12 of the Act.

11. In the light of the provisions we have quoted above, Section 18 must be read to mean that the Panchas enter upon their offices with effect from the date of the first meeting of the Gram Panchayat fixed under Section 19 (2), or, in other words, under Section 21. With effect from that date the Panchas enter upon their offices automatically. Their entering upon their offices is not dependent upon the notification of their election under Section 20. This is further reinforced by the proviso to Section 18 that the out-going Panchas continue to hold office upto the 'day preceding the date of the first meeting' fixed under Section 19 (2) or held under Section 21.

12. In the present case, therefore, the newly elected Panchas entered upon their office on August 4, 1970, when the first meeting within the meaning of Section 21 was held.

13. That apart, the election of the Panchas was notified by the Collector by affixing a notice on the Notice Board in the office of the Gram Panchayat. This fact is not in dispute. The contention for the petitioner was that the Notification by itself did not satisfy the requirements of Rule 80 of the Rules framed under Section 12, which rule provides for the manner of notifying election, co-option, appointment, etc., which initially read thus:--

'80. Manner of notifying election, co-option and appointment etc. -- Every election, co-option and appointment of a Panch of a Gram Panchayat or a Sarpanch and an Up-Sarpanch shall be notified by the Collector in the following manner:--

(a) The names of all elected, co-opted and appointed Panchas of a Gram Panchayat and of a Sarpanch and an Up-Sarpanch together with their permanent addresses and in relation to the elected Panchas also the names of the wards from which they are elected shall be published in the 'Madhya Pradesh Gazette'.'

(b) The Collector shall also publish the names of persons referred to in Clause (a) (together with their permanent addresses and in relation to the elected Panchas the names of the wards from which they are elected) by affixing a notice on the notice board in his office and the Janpada Panchayat concerned.' In the M. P. Local Acts by T.C. Shrivastava Vol. 7 (1966 Edition) at page 5019; and also in the Local Acts by R.K. Pandey, Vol. V (1966 Edition) at p. 4011, this rule is printed as above. This rule was subsequently amended and Clause (a) was deleted. The petitioner's contention was that this amendment was invalid. The argument was based on the assumption that the amendment had been made by the Government by mere issuance of a letter to all Collectors but without publication of the amendment in the M.P. Gazette. It was with some effort that the gazette notification became available. The amendment is published in the M.P. Rajpatra dated October 6, 1967, Part II, page 535, under Notification No. 380-20-XVIII-P. R. 67. Under the amended rule, the prescribed manner in which an election, co-option and appointment is to be notified, is the one laid down in Clause (b) above.

14. Thus, there is no substance in the contention that the newly elected Panchas were not competent to move the motion of no-confidence because their election had not been notified. We have, firstly, held that the newly elected Panchas enter upon their office as soon as the first meeting is held under Section 21, read with Section 19(2) of the Act and we have, secondly, held that the election of the newly elected Panchas was duly notified on August 11, 1970, as required by Section 20 of the Act. The notice of the motion was given on August 21, 1970. The first contention is, therefore, rejected.

15. It is then contended for the petitioner that the notice which was givenof the motion of no-confidence was not in accordance with the rules, firstly, because it was not in the form appended to the rules and, secondly, no reasons were stated why the Panchas had no-confidence in the petitioner. It is true that the notice of motion of no-confidence was not given on any printed form but there was substantial compliance as the notice unequivocally stated that the signatories to that notice proposed to move a no-confidence motion against the Sarpanch.

16. As regards the second objection, the prescribed form no doubt employs the expression 'for the following reasons' but no section or rule of the Act has been placed before us which provides for the reason on which a motion of no-confidence can be moved. In other words, a resolution of no-confidence can be passed just because 2/3rds of the Panchas present, vote in favour of the no-confidence motion. Therefore, the reason stated in this case that 'the Panchas have no-confidence in the Sarpanch' was substantial compliance with the rules. The second contention is also rejected.

17. The petitioner's third contention is that the meeting in which the resolution of no-confidence was passed was presided over by a person who had not been appointed by the prescribed authority as required by the rules. Under Section 24 (2), a meeting in which a motion of no-confidence is to be discussed against the Sarpanch, shall not be presided over by the Sarpanch but such meeting shall be presided over by an officer of the Government as the prescribed authority may appoint for that purpose. In the present case, the District Panchayat and Welfare Officer appointed the Naib Tahsildar to preside over the meeting. The contention of the petitioner was that such a meeting had to be presided over by an officer of the Government appointed by the 'Sub-Divisional Officer' inasmuch as it was the Sub-Divisional Officer who was the 'prescribed authority' within the meaning of Section 24 (2).

18. The expression 'prescribed authority' is defined in Section 2 (xxv) of the Act as follows:--

'2 (xxv) 'Prescribed Authority' in any provision of this act means such officer or authority as the State Government may, by notification, direct to discharge the functions of a prescribed authority under that provision.'

The Government by notification No. 197-152-XVII-Rules published in the M. P. Rajpatra dated October 12, 1962. Part II, page 607, appointed prescribed authorities under the different provisions of the Act. See M.P. Local Acts by T.C. Shrivastava (Vol. 7, 1966 Edn. page 4984) and M P. Local Acts by R. K. Pandey (Vol. 5, 1966Edn. at page 4011). Now, both these commentaries were published prior to the amendment of 1967. That notification was amended and superseded by Notification No. 2229-5354-XVIII-P.R. dated June 3, 1967, published in the M. P. Raipatra, dated July 21, 1967, Part II. page 474 (1967, Vol. IX, M. P. Law Times at page 310). Now, under the new notification, the prescribed authority for the purposes of Section 24 (2) of the Act is the District Panchayat and Welfare Officer. In the present case, since the election was held in 1970, the new notification applied and it was the District Panchayat and Welfare Officer who was the prescribed authority and who in fact appointed the Naib Tahsildar (an officer of the Government) to preside over the meeting. Thus, there was no defect at all.

19. The petition is dismissed. Parties shall bear their own costs. The outstanding amount of security deposit shall be refunded to the petitioner.


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