Bal Krishan Patel vs Brijendra Patel and others

C.P. Sen, J.

In this writ petition, the petitioner is challenging the ad interim order of the Additional Collector dated 6-3-1984 directing the parties to maintain status quo regarding the no confidence motion passed by respondent No. 1.

2, The respondent No. 1 was an elected Sar Panch of Gram Panchayat, Baroda, Tahsil and District Jabalpur. The petitioner is an elected Panch of that Gram Panchayat. The petitioner and nine other Panchas moved a no confidence motion against respondent No. 1 which was passed by 10 Panchas present and voting in favour of the resolution on - 14-2-1984. There were in all 15 panchas out of which five remained absent in spite of notice. The respondent No. 1 filed an appeal u/s 83 of the M.P. Panchayat Act 1981 before the Collector, Jabalpur and got an ad interim order. His main ground of attack was that there was no valid service of notice about the meeting on the remaining five Panchas. According to the petitioner, (i) no appeal is provided u/s 83 of the Act against a resolution of no confidence motion, and (ii) in view of section 18 of the Act, respondent No. 1 ceased to hold the office of Sarpanch from the date immediately next after the date on which the no confidence motion was passed.

3 After having heard the parties, we are of the opinion that there is is no merit in this petition. It is not disputed that u/s 83 of the Act the Additional Collector is the prescribed authority who can call for and examine the record of any proceeding under this Act of any subordinate officer of any Panchayat and if he is satisfied that the proceeding has resulted in a miscarriage of justice, he shall pass such orders thereon as he deems fit; no order shall be made to the prejudice of any party unless such party has been given an opportunity of being heard. Therefore, the Additional Collector had the jurisdiction to entertain a revision against a no confidence motion passed by a Gram Panchayat, though this was wrongly styled as an appeal by respondent No. 1. u/s 309 of the M.P. Panchayats Act, 1962, which has been repealed, the State Government had the power to call for and examine the record of proceedings of a Gram Panchayat or any of its officers for the purpose of satisfying itself as to the legality or propriety of any order passed and may reverse or modify the order as it may deem just. There was no such power in the Collector or the Additional Collector. u/s 86 of the present Act there is an appeal or revision provided against the order or proceedings of a Panchayat and other authorities under this Act and shall lie to such authorities and in such manner as may be prescribed. So an appeal or revision lies against the final order that may be passed by the Collector or the Additional Collecor u/s 83. u/s 313 of the repealed Act such an appeal or revision lay against the order of a subordinate officer. There was no appeal or revision provided against the proceedings of a Gram Panchayat. Section 18 of the present Act requires a no confidence motion to be passed by two third members present and voting and the majority should be more than one half of the total number of members constituting the Gram Panchayat. So in the present case this requirement was complied with. It is the settled view of this Court that if there is substantial compliance of this provision, a motion cannot be defeated for technical reasons and it is undemocratic to keep a person on the post when he lost majority. This Court in Bensilal Motilal v. Collector, West Nimar 1975 M P L J S N 3 has held that on passing a no confidence motion against the Sarpanch, the post of Sarpanch is automatically vacated; this effect cannot be arrested even by the operation of the stay order passed by the High Court. Such must be effect when a no confidence motion is passed in substantial compliance to section 18 of the Act. So, this Court in Motilal Ramchandra v. Gram Panchayat, Jamburdiarvar 1983 M P L J S N 8 has held that when a no confidence resolution against Sarpanch carried by overwhelming majority, the case is not fit for interference under Article 226 of the Constitution even if there was irregularity in the service of the notice of the meeting. This Court in Babulal v. State of M.P. 1966 M P L J 901 : 1966 J L J 735 has held that the Collector or any other authority had no power to stay the effect of the no confidence motion passed under the Municipalities Act. The motion of no confidence is not an executive order and the resolution takes effect from the moment it is passed. That was a case u/s 331 of the M.P. Municipalities Act, 1961 but that provision is not similar to section 83 or 86 of the present Act. In that context this Court held that even the State had no power to stay the effect of the no confidence motion because u/s 331 it had only the power to call for and examine the record of any proceeding under that Act in respect of a case and so it was held that this provision did not cover a no confidence motion the proceeding of which was not a case but now in the present enactment there is a power in the Collector or the Additional Collector to entertain a revision against a no confidence motion and even to pass an order of stay. But before passing an order, normally a no confidence motion cannot be defeated for technical reasons, even when there is sufficient compliance to section 18.

With these observations this petition is dismissed. There shall be no order as to costs. The outstanding amount of security be refunded to the petitioner.