1. This is a petition under Articles 226/227 of the Constitution of India for issue of writ of certiorari that the 'no-confidence' motion, passed on 25-10-71 against the petitioner Ramdas be quashed.
2. The petitioner's case is this. The Gram Panchayat, Thanra in Block Khaniadhana, District Shivpuri, consisted of 15 members. The petitioner was elected as 'Up-Sarpanch'. On 5-10-71, a notice (Annexure 1) was issued to the Panchas convening a meeting of the Gram Panchayat on 25-10-71 for consideration of the 'no-confidence' motion against the petitioner. On 25-10-71 the meeting was called and commenced at 11 A.M., but actually it started at 12-30 P.M. The motion of 'no-confidence' was passed against the petitioner vide Annexure 2, who challenged its validity on the grounds, (i) that the meeting though scheduled to begin at 11 A.M. actually started at 12-30 P.M.; (ii) the voting by the Ranchas was not by show of hands and thus there was no voting as contemplated by Section 24 of the M. P. Panchayats Act and the Rules framed thereunder; (iii) that the meeting was not attended by Manila Panchas; (iv) that the notice was not given by the Secretary as required by the law and rules; and (v) the signatures of the Panchas who were not present at the time of the meeting were obtained afterwards. Thus the resolution (Annexure 2) of 'no-confidence' is void.
3. The respondents Nos. 1, 2 and 3 in their return denied the allegations of the petitioner and contended that nine Panchas including the Sarpanch moved the motion of 'no-confidence' and delivered the notice (Annexure R-l). They contended that the Secretary convened the meeting by issuing a notice on 4/5-10-71 which was much more before seven clear days of the meeting (Annexure R-3). The fifteen Panchas received the notice between 5-10-71 to 7-10-71. In the meeting held on 25/10/71, 13 Panchas including the Sarpanch and Upsarpanch were present. This meeting commenced at 11 A.M. but 3 Panchas and the Upsarpanch Ramdas went away. All the Panchas present including the Sarpanch voted unanimously in favour of the 'no-confidence' motion (Annex. R-4). On the passing of the motion of 'no-confidence', the Upsarpanch ceased to hold his office with effect from 26-10-71 as per the provisions of Section 24 of the M. P. Panchayats Act. They denied that the meeting was held at 12-30 P.M. or that the Panchas who were not present signed the proceedings of the meeting afterwards. They contended that since the motion of 'no-confidence' was passed unanimously, there was no necessity to record the names of the Panchas who voted for and against the resolution. They asserted that no particular mode of voting was prescribed under the Rules and since the Panchas present in number 9 after deliberations unanimously passed the motion of 'no-confidence', its validity could not be questioned on the ground that there was no voting by show of hands. The respondents thus prayed for the dismissal of the petition on the ground that the motion of 'no-confidence' having been passed by 9 members of the Panchayat which consisted of 15 members, the meeting and its proceedings were valid and the petitioner could not ask this Court to quash the motion of 'no-confidence'.
4. The respondents Nos. 4, 7 and 11 in their return admitted the petitioner's allegations and contended that they were threatened by the Secretary and the Sarpanch and therefore, they put their signatures on the proceedings.
5. We have heard Shri A. R. Naoker, Advocate for the petitioner, Shri J. P. Shrivastava. Addl. Govt. Advocate for the respondents Nos. 1 to 3 and all other remaining respondents were not represented. We are of the view that the, petition deserves to be dismissed.
6. Shri Naoker, Advocate for thepetitioner did not press the following points before us:--
(i) that the meeting had commenced at 12-30 P.M. on 25-10-71;
(ii) that the notice of 'no-confidence' motion was bad in law; and
(iii) that the signatures of the Panchas who were not present were obtained afterwards.
7. Shri Naokar, Advocate for the petitioner, pressed only one point that there was no voting by show of hands and since the proceedings did not disclose how voting took place, the proceedings dated 25-10-71 were bad in law and consequently, the motion of 'no-confidence' passed in that meeting could have no legal effect.
8. Section 24 of the M. P. Panchayats Act provided that on a motion of 'no-confidence' being passed by the Gram Panchayat by a resolution passed by majority of more than one half of the total number of Panchas constituting the Gram Panchayat for the time being, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall cease to hold office with effect from the date immediately next after the date on which such motion is passed. Rule 4 of the M. P. Gram Panchayats (No-confidence Motion against Sarpanch or Up-Sarpanch) Rules. 1964, provided that the meeting of the Gram Panchayat for the purposes of Section 24 of the Act shall be convened by the Secretary and the notice of such meeting specifying the time and place thereof shall be despatched by the Secretary to every Panch seven clear days before the meeting. Rule 7 provided as under :--
'7. Minutes of the proceedings:--
(1) Minutes of proceedings at themeeting of the Gram Panchayat shall bedrawn up by the Secretary and recordedin the book kept for the purpose.
(2) The Minutes of the proceedings recorded under sub-rule (1) shall include:--
(i) the names of the Panchas present;
(ii) the decision of the meeting on the motion of no-confidence; and
(iii) when such decision is not unanimous the number of votes and names of Panchas voting for and against such motion and the names of those who have remained neutral.'
9. Thus Rule 2 (iii) provided that when the decision on the motion of no-confidence was not unanimous, the names of Panchas voting for and against such a motion and the names of those who have remained neutral should be mentioned in the proceedings under Sub-rule (1). Since, in this case, the motion of no confidence was passed unanimously, there was no need to record the number of votes with names of Panchas who voted for and against the motion of no-confidence as also the names of those who have remained neutral. The proceedings of the meeting (Annexure 2 and Annexure R-4) recorded the presence of 13 Panchas when the meeting commenced at 11 A.M. on 25-10-71 and also mentioned that the petitioner along with Panchas Gaurishanker, Narayandas and Laxminarayan left the meeting and went away. It also recorded that 9 Panchas out of the total 15 Panchas held deliberations and unanimously passed the motion of no-confidence. The minutes of the proceedings thus disclosed that 9 Panchas who moved the motion of 'no-confidence' as per Annexure R-l were present in the meeting held on 25-10-71 and voted in favour of the motion of 'no-confidence' after discussion. Since the resolution was passed unanimously, it was not necessary to record the number of votes, names of Panchas voting for and against the motion or the names of the neutral Panchas. In the circumstances, it could not be urged that the motion of 'no-confidence' which was discussed by 9 Panchas who also signed the proceedings was not validly passed.
10. Shri Naoker, Advocate for the petitioner, relied upon Sojharmal v. Municipal Council, Kharsia, 1964 Jab LJ 139 and contended that the voting should be by show of hands and since the Minutes recorded did not disclose that the voting was by show of hands, the entire proceedings were vitiated. A perusal of the above cited ruling will show that the main question for consideration was whether the voting by ballot could be held to be the legal method of voting in view of the provisions of the Madhya Pradesh Municipalities Act, 1961. A reference was made to the common law and it was stated that at common law votes at all meetings are taken by show of hands followed, if necessary by a poll; and, in the absence of any special provisions to the contrary in the constitution of a particular corporation, the common law method must prevail. Voting by show of hands means counting the persons present entitled to vote and who choose to vote by holding up their hands. In para 8 of this ruling, it was held that the method of voting on the motion of 'no-confidence', which was adopted at the meeting held on 5-11-1963, was by ballot, and therefore, the question requiring consideration is only as to the legality of the method of voting. It was, therefore, held that the mode of voting by ballot for the motion of 'no-confidence' said to have been carried at the meeting held on 5-11-63 was clearly illegal and contrary to the provisions of the M. P. Municipalities Act, 1961.
11. Our case is clearly distinguishable. There was no voting by ballot. The M. P. Gram Panchayats (No-confidence Motion against Sarpanch or UP-Sarpanch) Rules, 1964 do not provide for any special mode of voting and only provided that in case the voting was not unanimous, the number of votes with names of Panchas voting for and against the motion as also the names of those who have remained neutral should be mentioned in the Minutes of the proceedings. The voting by show of hands means counting the persons present entitled to vote and who choose to vote by holding up their hands. What is material is to ascertain the wishes of the Panchas present at the meeting whether they vote for and against the resolution. This can be ascertained by show of hands or by expression of opinion of the individual persons present and entitled to vote. In this case 9 Panchas were present and they were the persons who had moved and signed the motion of 'no-confidence'. They participated in the meeting, held deliberations over the motion of 'no-confidence' and unanimously voted in its favour. There was thus unanimous declaration by the present Panchas in favour of passing the 'no-confidence' motion.
12. In Mahendrasingh v. Collector, Gwalior, 1971 MPLJ 74 = (AIR 1971 Madh Pra 83) a question arose whether the prescribed form of 'No-confidence' motion which employed expression 'for the following reasons' could be considered as valid in the absence of the mention of the reasons in support thereof. It was held that the resolution of the'No-confidence' motion could be passed if the requisite number of Panchas voted in its favour. It was further held that though no reasons in support thereof were mentioned in the prescribed form of 'No-confidence' motion, mere expression 'the Panchas have no-confidence in the Sarpanch' was substantial compliance with the Rules.
13. Somewhat similar is the position here. The essential requirement was that more than one-half of the total number of Panchas should pass the 'No-confidence' motion and if there is substantial compliance with this requirement, the motion of 'No-confidence' shall be treated as having been validly passed though it was passed by discussion followed by unanimous consensus of opinion amongst the required number of Panchas. Thus the absence of voting by show of hands could not on any ground invalidate the proceedings. We are, therefore, of the view that the motion of 'No-confidence' having been validly passed against the petitioner, he has no right to request this court for quashing it.
14. In view of the above, we dismiss the petition. In the circumstances of the case, we direct the parties to bear their awn costs. The security amount shall be refunded to the petitioner.